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ILLINOIS. 977.308I29CV.25 
ILX C002 


3 1711 00547 5293 

v. 25 









JAN 26 19" 

Digitized by the Internet Archive 
in 2011 with funding from 
CARLI: Consortium of Academic and Research Libraries in 










Edited by 




Published by the Trustees of the Illinois State Historical Library 
in behalf of the State of Illinois 






Edited With Introduction by 


Emeritus Professor of Law, University of Pennsylvania 

Illinois State Historical Library 

Springfield, Illinois 


Copyright, 1950 


The Illinois State Historical Library 

(80259- A) 


ILU NO l£> 

- W.3&S 


Preface . . . /rr rTT\ xv 

Introduction xvii 



I. Laws of the first stage of government 

Continuity of legislation elsewhere examined .xvii 

II. Laws of the second stage of government, generally 

Some reflect frontier conditions already discussed xviii 

Some, illustrating changes in such conditions, already 

discussed ■ xviii 

Many, on territorial government have been discussed. . . .xix 
Very many dealing with courts ■ their significance xx 

III. Early trends from a nisi' prius to an appellate system 

Three judges onhy, vsessions necessarily ambulant xxi 

Common law jurisdiction only xxii 

Territorial legislation 

Made all issues of fact triable locally xxiii 

Split exercise of jurisdiction with local courts xxiv 

Nature of courts held on circuit by territorial judges 

Originally a nisi prius system , xxvi 

Causes for abandonment of that system 

Circuit courts irregular and infrequent xxviii 

Other facts prejudicial to General Court xxxi 

Authorization of one-judge courts. xxxiii 

Nature of circuit court 

Obscure to ordinary citizens xxxvi 

Further obscured by law of 1795 xxxvi 

IV. Early creation of courts outside common law system 

Probate court created in 1788 , .xxxix 

Orphans' court created and jurisdiction in divorce, 1795. .xl 

Struggle for chancery jurisdiction xl 

V. Reasons for disregarding limitations set by Ordinance . . . xlii 
Parallel developments in other territories to 1812 xlv 



8^337 LIBRAE* -- 




VI. Transformation of judicial system in Illinois 1812-1814 

Legislation of 1809-1812 xlvi 

Law of Dec. 25, 1812 xlvi 

Law of Dec. 10, 1813 xlvii 

Law of Dec. 13, 1814 xlvii 

Objections of the territorial judges xlix 

Consequent acts of Congress, 1815 and 1816 lii 

Later Illinois territorial legislation liii 

Illinois judicial system extended to other territories liv 


Power to Acquire Territory, Power to Establish Governments, 
Admission and Equality op States. 

I. Introduction, statement of underlying questions. lv 

II. Acquisition of territory — chronological statement of events. lviii 

III. Powers of Congress under the Articles of Confederation. . .lxxv 

IV. Powers of Congress under the Constitution 

To admit new states xciv 

To acquire territory xcv 

Compromise on preceding powers xcviii 

To govern as territories xcviii 

V. The rules-and-regulations clause 

Origin of the clause ev 

"Rules" and "regulations" in colonial controversy evi 

Five possible interpretations of the constitutional clause 

stated, and four briefly discussed " cix 

The view generally accepted today cxi 

Views of Chief Justice Taney on the clause cxiii 

Relation of Ordinance of 1787 to the Constitution cxxiii 

Conclusions cxxv 

VI. The power to regulate rights of person and property : 

Analysis of Dred Scott v. Sandford cxxx 

VII. The equality of states before and after 1789 

Conditions imposed on territories and supposedly on 

states clvii 

Did the Ordinance attempt to evade equality elxiv 



VIII. Meaning of "states" in state papers of Confederation era. clxviii 


Itself a Statute or a Constitution ? Relation to Constitution 
of the United States. 

I. A preliminary word on compacts clxxix 

The compact articles of the Ordinance stated clxxxi 

II. Laudation of the Ordinance ; how far justified clxxxiii 

III. Its constitutional character — supposed and true clxxxvi 

IV. The Ordinance and compacts particularly distinguished 

True compacts that underlay the Ordinance clxxxix 

That instrument merely legislation to perform them . . . cxci 
The pseudo compacts in the Ordinance 

Sources of misconceptions respecting them 

Disregard of the true nature of Congress excii 

Confusion with theories of social compact cxcv 

Alterability of compacts, true and false 

Under the Confederation cxcvii 

Under the Constitution cxcviii 

V. Situation after dissolution of the Confederacy 

True compacts underlying Ordinance validated by Con- 
stitution cc 

Effect of Ordinance's re-enactment in 1789 cci 

That instrument mere legislation ccii 

Inconsistent practice of Congress re boundaries cciv 

Views of Webster and others ccviii 

Only seemingly inconsistent acts of Congress 

Be navigable streams ccxiii 

Be freedom of religion ccxx 

Practices plainly inconsistent with compacts ccxxii 

The antislavery article particularly considered 

Misreadings of treaties of 1763 and 1783 ccxxiii 

Misinterpretation of Virginia's conveyance ccxxv 

Misinterpretation of the Ordinance ccxxix 



Why abolition was not enforced 

Popular confusion ccxxxviii 

Indifference of Ohio Company ccxl 

Original understanding in Illinois ccxli 

St. Clair's improper actions ccxli 

Inconclusive judicial and congressional action ccxliii 
Actual guaranty to French inhabitants not enforced . . ccxlviii 



Purposes of the Discussion ccl 

I. Jefferson's ordinance of 1784 

(1) Provisions stated and compared with Ordinance of 

1787 cclii 

(2) General misconceptions concerning it, corrected 

That it was not actually a governmental plan . . cclviii 
That it never became law cclxii 

( 3 ) Reasons why it never was actually applied 

Those external to its provisions cclxiii 

Those involved in its provisions 

Did it lack definite character ? cclxvii 

The division into ten small states cclxx 

The population requirement for admission . . cclxxv 
The proposition to exclude slavery cclxxix 

(4) Its extreme democracy emphasized cclxxx 

II. Abandonment of Jefferson's ordinance 

(1) General causes operating cclxxxii 

(2) Monroe's part in its repeal 

Possible origin of this attitude cclxxxA'i 

Revision begun by attack on ten-state provision 


Illiberalism triumphant in colonial system, .cclxxxvii 

( 3 ) What did extremists really desire ? : ccxciv 

(4) Attitude of Jefferson toward above actions 

Explanation cccv 

(5) Attitude of historians cccvii 

(6) True greatness of Jefferson's ordinance cccviii 



III. Relation of the two ordinances 

(1) Laudation of Ordinance of 1787 : how far merited, .cccix 

What parts showed wisdom or liberalism? 

The compacts ? cccxi 

Jefferson 's six principles ? cccxi 

Dane's personal contributions .' cccxi 

Relation of the Ordinance to our colonial system 


To protection of personal liberties cccxiii 

To our federal system cccxiv 

(2) Misconceptions of the relation of the two plans. . . .cccxv 

IV. Reasons for repudiation of Jefferson's ordinance 

(1) Dane's stated reason cccxxiv 

(2) Other possible reasons 

Danger attributed to foreign powers cccxxvi 

Danger of supposed frontier ' ' disloyalty " . . . . cccxxvii 
Complexity of problem cccxxix 

(3) Were these fears reasonable? 

Prevalent misapprehensions regarding frontier 


Frontier ! s shif tlessness cccxxxviii 

Frontier's lawlessness cccxi 

Question answered negatively cccxiv 

(4) Judgments on the Ordinance of 1787 cccliv 

V. Authorship of the Ordinance ccclxiii 



I. Introduction 

Consequences of the Ordinance's imperfect drafting 


Inattention to this and to constitutional problems illus- 

By opinions of two attorneys general ccclxxxix 

By transfer to executive of powers exclusively con- 
gressional cccxc 



II. Territorial executive problems cccxciii 

Partly due to geographical conditions cccxcv 

Partly to inadequate provision for an acting governor 


' ' Absence ' ' of the governor cccxcvi 

III. Legislative problems arising from Ordinance's imperfections 

( 1 ) Requirement that laws be ' ' adopted ' ' from ' ' original 

states " cccc 

Distinction between "adopting" and "making" 

Rested on a political motive cccc 

Without basis in the diction of the time cccci 

Legislative origin and intent uncertain ccccii 

Antecedents seemingly justify liberal interpreta- 
tion ccccii 

Theoretically attractive ccccv 

Its application subject to great difficulties ccccvi 

Actual practice in the Northwest Territory ccccx 

In other territories ccccxviii 

(2) Another type of statutory adoption: 

Precedent in Southwest Territory ccccxxviii 

Despite success never made a general congressional 

policy ccecxxxi 

In Northwest Territory made Ordinance require- 
ment endurable ecccxxxii 

Applied in other territories formed there- 
from ccccxxxiii 

Extended by Congress in upper Mississippi 
valley ccccxxxvi 

(3) Legality of imperfectly "adopted" laws 

Sustained in sole direct judicial decision .. ccccxxxviii 

Plainly implied in the Ordinance's words ccccxl 

Clearly required by public policy ccccxlii 

All territorial laws always subject to nullifica- 
tion ccccxliii 

IV. Definition of legislative quorum and majority 

Correct and incorrect readings of the Ordinance. . . . ccecxlvi 



Consequences of correct reading 

As respects definition of legislative quorum ccccxlvii 

As respects veto power of governor ccccxlvii 

Quorum problem in Michigan Territory ccccxlvii 

V. The governor's powers of veto and prorogation 

Meaning of ' ' veto " ccccl 

Disagreements between governor and judges as to power 


Later history of the veto cccclii 

History of proroguing power ccccliii 

VI. Concentration of governmental powers 

General nonobservance of division of powers cccclvi 

Concentration necessarily caused obscurities cccclix 

Government by proclamation cccclix 

The pardoning power cccclxiii 

The appointing power 

As to judges of General Court cccclxiv 

As to militia officers cccclxvi 

As to minor judiciary cccclxvii 

Judicial tenure, power of removal cccclxvii 

As to clerks of court cccclxvii 

As to new offices 

Territorial attorney general cccclxix 

Power to create counties and fix county seats cccclxxiii 

Conclusion cccclxxvi 




Laws of the Territory of Illinois, 1809-1811 3-47 

Laws passed by the Legislative Council and House of 
Representatives of Illinois Territory at their First 
Session held at Kaskaskia in 1812 49-82 

Laws and Joint Resolution passed by the Legislative Coun- 
cil and House of Representatives of Illinois Territory 
at their Second Session held at Kaskaskia in 1813 83-121 

Laws and Joint Resolutions passed by the Legislative 
Council and House of Representatives of Illinois Ter- 
ritory at their Third Session held at Kaskaskia in 1814.123-181 

Laws passed by the Legislative Council and House of Rep- 
resentatives, of Illinois Territory, at their Fourth 
Session, held at Kaskaskia, 1815- '16 183-229 

Laws passed by the Legislative Council, and House of Rep- 
resentatives, of Illinois Territory, at their Fifth Ses- 
sion, held at Kaskaskia — 1816-17 231-278 

Laws passed by the General Assembly of Illinois Terri- 
tory, at their Sixth Session, held at Kaskaskia — 
1817- '18 279-363 

Index 365 



In the introduction to The Laws of Indiana Territory, 1801-1809 
{Illinois Historical Collections, 21) considerable attention was given 
to matters of concern primarily to lawyers : the organization of courts, 
the personnel of bench and bar, the character and amount of litigation, 
crimes and prosecutions. However, as the examination of local records 
in southern Illinois in preparation for that volume was made possible 
by aid from the State Historical Library, and not by aid from 
lawyers, most of the introduction to it was devoted to matters in which 
general historians would be primarily interested : to the laws illus- 
trating social conditions, to economic controls, taxation, the land 
frauds, the character of local and territorial administration, the con- 
troversies over division of the territory and over transition from the 
first to the second stage of territorial government, and information 
concerning the individuals who were prominent in the early judicial 
and administrative records of Illinois. 

The introduction to Pope's Digest, 1815 {Illinois Historical Col- 
lections, 28, 30) Avas devoted exclusively to matters in which lawyers 
alone have special interest,, save in so far as some light was incidentally 
thrown on the activities of a few lawyers who were important actors 
in the political life of the Territory and State up to 1830. 

In these earlier volumes virtually nothing was said of the basic 
public law of the early territorial system. To that topic the introduction 
to the present volume is almost exclusively devoted — all of it, in fact, 
except the first section. The writer has not been without warning, 
both from print and from friends, that perhaps too much has already 
been written of the general subject — which at basis is the Ordinance 
of 1787 — considered in the other four sections. The writer shared 
that feeling as respected portions of the subject; yet even in the case 
of these he hopes that sufficient justification is shown for their renewed 
examination. Reference is here made, particularly, to the topics of the 
Ordinance's authorship and its antislavery compact. Discussions of 
the former have presented amazing examples of a willingness on the 
part of professional historians (including two presidents of the 
American Historical Association) to substitute fantasy for evidence; 
and the}' - also illustrate the deterrent influence of such writing upon 
the independent judgment of younger writers. As for the antislavery 

article of the Ordinance, false conceptions of that instrument's nature, 
and particularly of its "compact articles" are still embedded in all 
but a minimal part of the books in which students would put unques- 
tioning confidence, and an uncritical reading of documents has led to 
confusion even as respects the purpose of Article VI. 

The writer's general attitude toward the Ordinance, and his judg- 
ments respecting the impediments to successful administration which 
its omissions and obscurities presented, were formed tentatively and 
in a general way when engaged in the work on volume 21 of these 
Collections, twenty years ago. Later reading and reflection have only 
confirmed them. 

The present volume should have appeared at least fifteen years 
ago. The Jefferson Papers and other collections in the Library of 
Congress had been searched even before then. By the kindness of Dr. 
Clarence Edwin Carter, the documents collected by him for five or six 
of the early territories were examined before publication began of 
the Territorial Papers under his superb editorship. And in the early 
1930 's I received every aid and courtesy from Miss Margaret C. Norton 
in examining papers in the Archives Division of the Illinois State 
Library. So far as any documents then examined in these or other 
repositories have since been published in the Territorial Papers they 
are cited, for the reader's convenience, as therein published. It is in 
some ways well that circumstances prevented for many years the 
actual appearance of this volume. Little of the immense mass of data 
remained in the writer 's mind when work was resumed ; a complete 
re-examination of all notes and of much of the original sources 
was a necessity ; and this retracing of every step has altered opinions 
on some points and revealed many additional connections between 
events. It has also clarified the writer's views on countless matters. 

Particular acknowledgments are due to the Social Science Re- 
search Council for a grant-in-aid for the summer of 1948, and to Mr. 
J. Monaghan, in charge of the Illinois State Historical Library, for an 
appointment on the staff of the Library for the same period. The text 
of the laws as here printed has been prepared entirely by the Library. 
Though cordially acknowledging many courtesies shown me by other 
members of the staff, I am particularly indebted to Mrs. P. A. Whit- 
ney, Mr. Howard Rissler, and Mr. S. A. Wetherbee for the immense 
services of putting my manuscript into proper form and of seeing it 
through the press. For the accuracy of citations, however, I am myself 
alone responsible. fraxcis s; philbriok 




Few of the statutes in this volume are individually of any par- 
ticular interest. There are only thirty-four 1 of the period of govern- 
ment of the first stage. The general characteristics of these in relation 
to the law of the territories of which Illinois was a part before it 
became a separate territory are discussed in the last section of the 
present introduction. 2 The great importance is there emphasized of 
the fact that the laws of the Northwest Territory continued in force 
as the basic statutory system in each of the territories therefrom de- 
veloped, except as gradually modified by their independent legislation ; 
and of the further fact that the same was true of the statutes of each 
of those territories in relation to others carved out of it. 3 Thus the 
laws of Indiana Territory, including the notable revision of 1807 
(which embodied much of the laws of the Northwest Territory), 4 and 
of the Northwest Territory so far as not modified or superseded by 
Indiana legislation, were recognized as the basic law of Illinois Terri- 
tory in 1809 5 and again in 1812.° Thanks to this continuity of legisla- 
tion from the Northwest Territory into and through other territories 
throughout the Old Northwest and much of the upper Mississippi 
Valley, each territory was free to enjoy from the outset a great body 
of law originally selected and sometimes several times revised to suit 
frontier conditions. The process has been discussed in the introduc- 

i See post nn. 113, 164 of Sec. V. 

2 Post ccccxxviii seq. 

3 Post ccccxxxii-viii. However, Michigan in 1810 renounced her heritage. 
See post at notecalls 161-63 of Sec. V and W. W. Blume, ed., Transactions of 
the Supreme Court of the Territory of Michigan, 1805-1836 (6 vol. 1935-1940), 
1 : xxxix-xl. 

4 F. S. Philbrick, The Laws of Indiana Territory, 1801-1809 (Illinois 
Historical Collections, 21), cii-ciii, civ-cvi; Pope's Digest, 1815 (Z. H. C. 28), 
1: xvii-xviii, xxxiii. 

s Post 5. 
sPost 51. 



tion to The Laws of Indiana Territory, and is more fully examined in 
the last section of the present introduction. 7 The relation of the laws 
in this volume to the revision of 1815, and through it to the permanent 
statutory law of Illinois, was discussed in the introduction to Pope's 
Digest, 1815. 8 Almost all the laws in the present volume are mere 
slight supplements to the earlier legislation. This is the reason why 
so few of them merit individual discussion. 

There are, however, a few laws relating to the General Court that 
call for very particular discussion. Before passing to their consideration 
the contents of the volume may be considered in a general way, especi- 
ally the laws on courts. The purpose of this is to make clear in outline 
the older judicial system and particularly to consider its defects, in 
order better to understand the purpose of the territorial legislature, 
and the precedents on which it acted. 


Of laws passed by the legislature under the second or representa 
tive stage of government there is a total of one hundred and eighty- 
seven. 9 Of these, there are eighteen (in addition to two from the 
earlier first stage of government 10 ) which reflect the still distinctly 
frontier conditions of the Territory ; 1X a discussion of these would add 
nothing to that of similar statutes passed while it was a part of Indiana 
Territory, and discussed in an earlier volume. 12 On the other hand, 
the place in the state 's legislative development of twelve laws which 

7 Post ccccxxviii seq. and Philbrick, Laws of Indiana Territory (I. H. G. 
21), as in n. 4 ante. 

s Philbrick, Pope's Digest, 1815 (I.H.C. 28), 1: xv-xviii. 

!1 Only 186 if the suggestion be accepted that the first "law" of 1812 is 
only in form such, being in substance, like the first "law" of 1809, not an order 
as to what shall be law but a formal recital (merely more formal than the 
resolution of 1809) of what the legislators regarded as existing fact — see 
post n. 164 of Sec. V. 

10 One to provide for the guarding of jails! — post 18; see Philbrick, 
Laivs of Indiana Territory (I.H.C. 21), clxxxi-clxxxii. The other was to 
suppress dueling — post 36. One of the acts for relief of individuals 
cited in n. 33 below was for persons who had violated the law against dueling 
— post 187; see ibid. 372-73. xciv n. 2, ccliv. 

ii Namely, 3 on wolves — post 159, 191, 233; 3 on Indians — post 89, 154. 
177; 6 on ferries— post 71, 158, 187, 205, 283, 303; 2 on bridges— post 310. 326: 
2 on grist mills — post 64, 292; 1 on mill dams — post 301; 1 on salt-peter caves 
— post 302. 

12 Philbrick, Laics of Indiana Territory (I.H.C. 21), at cxxii-cxxiv. 



mark the oncoming of new social conditions 13 can best be appreciated 
by considering them in connection with the disappearances and first 
appearances of topical headings in successive revised statutes of the 
state ; and these have also been discussed in the introduction to another 
earlier volume of these Collections. 14 

To these indicia of a passing and of a coming society may be 
added a reference to the two statutes on Negroes and mulattoes. 15 It 
became clear a few years later that they belonged to the past. These 
statutes are a trifling appendage to the legislation of the Indiana Terri- 
tory on the same topics, and that legislation has also been fully dis- 
cussed in an earlier volume. 11 '' 

Another large division of these early laws is that dealing with 
territorial government. The most important sub-group of these is that 
relating to the collection of revenue. 17 It was manifestly still a diffi- 
cult problem, as it was in the period of the Indiana Territory, 18 one 
illustration of which is found in the statutes passed to cure irregulari- 
ties of sheriffs, treasurers, commissioners, and county courts in their 
procedure under the tax laws. 19 Two other large sub-groups are 
constituted of acts dividing or altering the boundaries of old counties 
or creating new ones 20 and of provisions relating to the militia. The 
former have no general significance beyond indicating the rapid 
growth of population. The militia laws were failures, as they had 

is Namely, 1 on public warehouses — post 251; 1 declaring a stream navi- 
gable — post 312; 2 on a territorial census— post 315, 317; 1 granting a divorce 
— post 309; and 7 incorporating banks, navigation companies, and medical 
societies— post 239, 284, 297, 327, 334, 340, 348. 

14 Philbrick, Pope's Digest, 1815 (I.H.C. 28), 1: xxi, lxix-lxxiv. Topical 
headings first appeared in this Digest of 1815. Some old subjects of legisla- 
tion had disappeared by that date, others were gone from the Code of 1827- 
1829. The changes from 1827-1845 are discussed in the pages cited. 

is Post 97, 157. 

is Philbrick, Laws of Indiana Territory {I.H.C. 21), xxxvii, xlviii, 

i" Sixteen laws — 9 on the land tax, post 59, 114, 130, 175, 212, 265, 267, 
297, 314; 7 (2 of these applicable likewise to land) on other property or 
sources of revenue — post 11, 89, 114, 158, 204, 211, 267. Five acts dealing with 
the collection of unpaid taxes (not prescribing a normal and future mode of 
collection) are included in those cited post in n. 19, but are not included in 
the 16 here in question. 

is Philbrick, Laws of Indiana Territory (I.H.C. 21), cxv-cxx. 

is See the following 8 laws — post 51, 85, 113, 193, 198, 234, 265, 322. To 
these laws are to be added 2 more from the first stage of government— post 
11, 18. 

20 Fourteen laws. 



been during the Indiana period.- 1 Indeed, they were probably every- 
where failures. Commissions were social distinctions, and to confer 
them so as to give satisfaction and at the same time make the militia 
an effective military body seems to have been in every territory a 
problem exceedingly difficult to handle. 2 - The other statutes in this 
division of governmental provisions dealt with the bare essentials of 
administration. 2 " 

Not, indeed, ecpial in number to all the statutes already men- 
tioned, 24 but more than two-thirds as numerous, were those dealing 
with the administration of justice. These include laws regulating the 
various courts from those of justices of the peace to the highest tri- 
bunal of the Territory 25 — to which some attention will be given below ; 
fixing the seats of justice ; 20 dealing with clerks, sheriffs, circuit at- 
torneys and attorneys, and with grand and petit juries; 27 a notably 
large number dealing with practice and fees 28 — to which we may join 
one "to compel the citizens of this territory to afford legal assistance 
to certain officers" (to wit: "any Judge, Justice of the peace Sheriff 
Coroner or Constable") "in the due execution of their offices"; 29 a 
group modifying the law under a miscellanj^ of heads; 30 a few on 

21 There were 10 of these laws. See Philbrick, Laics of Indiana Territory 
(I.H.C. 21), cxxii-cxxiii. 

22 Perhaps most so in Mississippi. Compare C. E. Carter, eel., The Ter- 
ritorial Papers of the United States (1934 ), 5: 74-75, 530, 562-67, 570-71, 

576-77, 604-7, 728; 6: 33, 317. 

23 With oaths of office (2 laws), salaries and fees (6 laws) of non-judicial 
county or territorial officials, with elections (3 — post 70, 93, 118), qualifica- 
tions and allotment of representatives in General Assembly (2), provisions 
for county government (4 — post 67, 144, 172, 303). 

2 * Namely, omitting duplications, 99. 

2 5 There are 27 such laws: 8 dwst 52, 75, 78, 98, 136, 160, 207, 263) deal- 
ing with the highest court of the Territory; 5 (iwst 203, 207, 256, 324, 355) 
with circuit courts; 3 (post 57, 86, 90) with the old Common Pleas; 4 {post 
149, 169, 199, 264) with the County Courts that followed the Common Pleas: 
2 {post 206, 324) with Courts for Small Causes; and 5 (post 94, 161, 270, 
283, 355) with Justices of the Peace. 

2fi There were 6 such laws; changes were made necessary by the laws 
cited ante at notecall 20. 

27 There were 6 laws (post 55, sec. 19; 156, 205, 221, 224, 275) on the duties 
of clerks; 3 (post 221, 266, 324) on district and circuit attorneys; 2 (post 
66, 192) on juries; and 1 {post 238) excluding Indiana attorneys from prac- 
ticing in Illinois. 

as Sixteen on practice and procedure, including acts on abatement, cer- 
tiorari, executions, and indictments — post 52, two; 73, 86, 94, 131, 135, 150, 
157, 171, 188, 217, 246, 250, 253, 305— and five on judicial fees. 

■^ Post 211. 

ao On fraud (1 — post 65), crimes (2 — post 77, 225), bankruptcy (1 — post 
250), intestacy (2 — post 110 and see 275), fines and forfeitures (2), estrays 
(1), and the effect of repealing a repealing statute (1 — jjost 191). 



records, 31 and a few others on the revision and printing of the laws ; 32 
and a small number of private acts for the relief of individuals. 33 

The very small number of statutes passed to modify the substan- 
tive law, in proportion to those relating to the courts, their auxiliary 
officers, practice and procedure — approximately one to five — shows 
very well that there was general satisfaction with the law but great 
dissatisfaction with the machinery for administering it. Justification 
for dissatisfaction with both the law and its administration was almost 
certainly greatest in the early years of the Northwest Territory, and 
lessened as time passed. On the other hand, tinkering with the judi- 
cial system, evidencing dissatisfaction with it, steadily increased. This 
was certainly not because the service it rendered deteriorated; — far 
from it. It was because appreciation of the courts was growing, be- 
cause more was expected of them, and because certain changes in them 
which territorial opinion looked upon as betterments could not be 
thoroughly effected without altering fundamentally the whole judicial 
system set up by the Ordinance. Many things marked a tendency in 
that direction over a score of years. The change came to a climax in 
the Illinois statutes which will be particularly considered. A review of 
their antecedants will make clear to non-lawyers the significance of 
those statutes. 


The Ordinance provided for the whole of the Old Northwest a 
single General Court of three judges. True, there was no population 
in great portions of this region and so no need for law ; but there was 
need for courts in various scattered settlements over an area about 
nine hundred by three hundred miles. 34 In some way the three judges 
were expected to supply the needs of this area for regularly adminis- 
tered justice. It seems evident that it was the physical circumstances 
of the Territory which compelled the Court to be ambulant when 

si Namely, 3; none was a recording act, two relating to "ancient records 
and papers," the other to the records of the federal land commissioners. 

32 Also 3. 

33 in all 6 (not including any cited in n. 19 but including one on divorce 
already mentioned). The laws mentioned in nn. 25-30, after deducting dupli- 
cation, total 74. Six laws included in the 99 of n. 24 are also included in the 
preceding total of 74. 

34 This is conservative. In 1800 a committee of Congress stated the 
distance between the two places "of holding courts" which were most remote 
from each other as 1300 miles — American State Papers, Miscellaneous, 1: 206. 



sitting in bank ; and in 1795, when a seat of justice was for the first 
time fixed for such sessions, two were fixed — at Marietta and Cincin- 
nati — for the better accommodation of the rapidly increasing popu- 
lation in those two extremes of the Territory in Ohio. 35 

Whether or not Congress intended that the Court 's original juris- 
diction should be exercised not at a fixed seat but on circuit cannot, 
of course, be said. It is, indeed, very unlikely that more than a 
very few members gave thought to the matter. But in the first and 
fundamental act of the governor and judges relating to the Court it 
was provided that it should hold pleas four times yearly "in such 
counties as the judges. . . deem most conducive to the general good. . . . 
Provided, however, that but one term be holden in any one county in 
a year ; and that all processces ... be returnable to said court whereso- 
ever they may be in said territory. ' ' 3C This was a natural interpreta- 
tion of the Ordinance for Governor St. Clair, since the same practice 
was followed in Pennsylvania under the law from which the terri- 
torial statute was adopted. 37 

The Ordinance conferred upon the Court "a common law juris- 
diction," 38 but it said nothing whatever as to how the jurisdiction 
should be exercised, so that the Court was undoubtedly free to exer- 
cise its discretion in the manner stated. But the territorial legislature, 
though it consisted of "the governor, and the judges or a majority of 
them, ' ' 30 was nevertheless not to be confused with the Court. It would 
have been possible for the Court to regulate its sittings and other 
affairs, but most extraordinary. Regulation should properly have 
been made by Congress, which only by re-enactment of the Ordinance 
in 1789 gave vitality to it under the new Union. Its failure to act in 
this respect, under the unrestricted power over the territories con- 
ferred upon it by the Constitution, is only one detail illustrating the 
confusion which prevailed in 1789 respecting the legal bases of terri- 
torial government. In the last section of this introduction the sur- 

35 T. C. Pease, The Laws of the Northwest Territory. H8S-1S00 (I.H.C. 
17), 156. The Supreme Court of Pennsylvania sits alternately today at 
Philadelphia and Pittsburgh. 

36 Act of Aug. 30, 1788 — ibid. 11. An act of Nov. 4, 1790 required a ses- 
sion yearly — ibid. 35. 

37 Act of May 22, 1722— Stat, at Large of Pa., 3: 302-3. 

38 Carter, Territorial Papers, 2: 41. 

30 Ibid. 42. This was the true reading of the Ordinance in the journal 
of Congress; on the reading in the printed copies that were before the terri- 
torial officials see ibid, in 14 and post ccccxlvi seq. 



render of powers by Congress to the executive department is dis- 
cussed. 40 The point here in question involves surrender of power to 
the territorial legislature. That body could not, of course, legally alter 
any provisions actually made by Congress relating to the Court. It 
also seems quite clear that mere repetitions in territorial statutes of 
congressional regulations were necessarily quite without legal effect. 41 
That is to say, unless and until Congress authorized the legislature to 
regulate the Court consistently with the Ordinance and other acts of 
Congress. Almost a year passed between the enactment of the original 
Ordinance and the reunion of the Governor and judges in the Terri- 
tory; much of it was passed by St. Clair in Philadelphia. Another 
year passed before the re-enactment of the Ordinance by the new 
Congress. 42 It seems almost inconceivable that questions such as those 
adverted to above could have been overlooked by a man of the 
Governor's great ability until he went to the Territory. Yet, in the 
year preceding that date, he and Congress were so engrossed in 
dangers of Indian uprisings 43 that possibly nobody gave thought to the 
most fundamental problems of territorial administration. 

All that one can know is, that a year before the re-enactment 
(and St, Clair is possibly the one who first saw the necessity of that 44 ) 
the territorial legislature had of necessity begun to pass laws as 
though Congress had given it the authorization stated. "The general 
court for the territory . . . shall hold pleas, civil and criminal, at four 
certain . . . terms . . . every year"— -at places stated — but only once 
yearly in one county — and (a most extraordinary limitation, though 
a mere recital of basic common law) "provided . . . That all issues of 
fact shall be tried in the county where the cause of action shall have 
arisen." 45 All this and more in the first law on the General Court, 
passed a few weeks after the Governor and first judges had gotten 
together. By 1795 these imperatives had long gone unchallenged, and 

4 Post cccxc-xciii. 

41 Of course the same was true of provisions in the Ordinance that were 
duplicated (or covered) by provisions of the Constitution — post ccxx. 

*2 Enactment, July 13, 1787; reunion in the Territory, between July 9 
and 15, 1788 — Carter, Territorial Papers, 3: 263; re-enactment of the Ordi- 
nance, Aug. 7, 1789 — i&id. 2: 203. 

43 See the first fifty pages of the second volume of W. H. Smith, ed.,. The 
St. Clair Papers (2 vol. 1882). 

44 Compare ibid. 416 and Carter, Territorial Papers, 2: 205. 

45 Law of Aug. 30, 1788^-T. C. Pease, Laics of the Northwest Territory 
(I.H.C. 17), 11. 



possibly a second and far greater limitation on the Court's jurisdic- 
tion was decreed. 46 It was only by chance that in one section there was 
merely a recitation : "The judges of the general court have power . . . 
to deliver the jails," but that was in time discovered and altered to 
read: "shall have power." 47 And actual restrictions on the Court's 
power continued to increase in number, as will later be shown. 

Another, though less obscure, problem was raised by the legisla- 
ture's action. By two laws — one of earlier date than, and one of the 
same date as, the first law on the General Court, but both acted on in 
advance of that — Governor St. Clair and the judges created three 
local courts — of civil jurisdiction (common pleas), of criminal juris- 
diction (quarter sessions of the peace), and of probate. The Ordinance 
did not say that the General Court should alone exercise the jurisdic- 
tion conferred on it. Can it be fairly assumed that it was within the 
intent of Congress that the territorial legislature should create other 
courts to share that jurisdiction, subject to its supreme control? This 
does not seem to be an unfair assumption. In virtually all the colonies 
from which came the ten men who shared, in committee, in framing 
the Ordinance, the highest court was both an appellate court and a 
court of first instance with general jurisdiction at law. 48 However, 
here as on almost every other fundamental question, the Ordinance's 
brevity or obscurity leaves one to speculation. 49 

The probate court will be referred to below. The county courts 
of common pleas were given a broad civil jurisdiction; namely, to 
"hear and determine all pleas, actions, suits, and causes of a civil 
nature, real, personal, and mixed." 50 The courts of general quarter 
sessions of the peace were empowered "to hear, determine and sen- 
tence ... all crimes . . . the punishment whereof [did] not extend to 

*6 Post xxxix-xl. 

4" This was in the law of 1795, sec. 12 — ioid. 158; unchanged until the 
Indiana revision of 1807, when "shall" was introduced — laws of Jan. 23, 1801 
and Sept. 17, 1807, in Philbrick, Laics of Indiana Territory (I.H.C. 21), 
12, 232. 

48 They are named post n. 319 of Sec. IV. They came from Virginia, 
Connecticut, New York, Massachusetts, South Carolina, and Pennsylvania. 
Of these states Pennsylvania and South Carolina had supreme courts that 
functioned primarily under the nisi prius system. But it was a hybrid 
system, like that described post following notecall 83. See R. Pound, 
Organization of Courts (1940), 67-72, 80-85, 116. 

-t y The last section of this introduction is devoted to a commentary on 
various points illustrating the truth of this statement. 

so T. C. Pease, Laws of the Northivest Territory (I.H.C. 17), 7. 



life, limb, imprisonment for more than one year, or forfeiture of goods 
and chattels, or lands and tenements to the . . . territory." Any per- 
son suspected of a crime not triable in the quarter sessions was held 
in jail or under recognizance for trial, and the recognizance was re- 
quired to be certified "before the general court of the territory at 
their next succeeding term, or before a court of oyer and terminer and 
gaol delivery for the county, ' ' if the latter held ' ' next after the taking 
thereof." Unfortunately even the courts of oyer and terminer were 
infrequent, and a speedy trial at home was rarely possible. 51 

To the system of local courts organized in 1788 an orphans' court 
was added in 1795 s2 when the whole system was revised. 53 All of these 
courts were taken over into the Indiana system with revisions by a 
law of 1801, 5 * and all were abolished in 1805 when their powers were 
merged in a single court of common pleas. 55 To their internal consti- 
tution and their relation to the General Court the legislatures of 
Indiana and Illinois territories gave a constant and attentive scrutiny, 
which culminated in an act of the latter territory of 1814. All this 
general account of the territorial judicial system is a necessary pre- 
liminary to an understanding of that act and its consequences. 

If the General Court created by the Ordinance had alone existed 
it must have exercised its jurisdiction either by sitting in bank in 
different parts of the Territory successively or by means of a nisi prius 
system. The size of the Territory, the hardships of travel, and the 
gross inattention of the judges to their duties made the first alternative 
impossible. The legislation of the governor and judges implied a 
nisi prius system. But how nearly it approached English models 
cannot be known until the original records of the Court are published 
or carefully studied. The immediate creation of independent local 
courts made probable the early development of an appellate system, 

si Ibid. 5. The courts of oyer and terminer were held, when judged 
necessary by the governor, under special commission from him, if a judge 
could be induced to go to the county. The law on the General Court provided 
that "in case neither of the judges shall attend at the time and place afore- 
said" the sheriff should "adjourn the court from day to day . . .; and then 
to the next term." And all process could be continued indefinitely — ibid. 11. 

52 Act of June 16, 1795 — ibid. 181. An appeal was allowed "to the General 
or circuit courts" — ibid. 186. 

53 Act of June 6, 1795 — ibid. 154. 

. 54 Act of Jan. 23, 1801— Philbrick, Laws of Indiana Territory (I.H.C. 21), 

55 Act of Aug. 24, 1805— ibid. 116, 117; act of Sept. 17, 1807 (revision of 
1807)— ibid. 225. 



in accord with general tendencies in the colonies, and that probability 
soon became a reality. 

These local courts were of and in the community, and it was they, 
in particular, which brought justice home to the people. 

The original common law jurisdiction, civil and criminal, of the 
General Court being unlimited by the Ordinance, and coextensive with 
the Territory, civil actions could be begun or prosecutions for crime 
initiated in it wherever it might be in the Territory. Because suitors 
could not be expected to go hundreds of miles to file suit, the Court 
was ambulant for their convenience. Having no fixed seat, even in 
Ohio, there could not be in law any difference between an ambulant 
General Court at Marietta or Cincinnati and one "on circuit" in 
some more western county deemed (under the law of 1788) to need it, 
or in which (under the law of 1790 requiring a term in every county) 
it sat as of course. It Avas everywhere, and equalty, a General Court. 
It seems evident, however, that a disposition existed to think of "the 
ordinaiy General Court" as essentially different from the General 
Court on circuit ; and in the end this attitude led to their being made 
different. The functions of the Court in the two situations were to a 
degree different. From the fact that issues of fact must be tried in 
the vicinage where a cause of action arose or a crime was committed 
there necessarily resulted a differentiation in the functions of the 
judges of the General Court "on circuit" and, as they no doubt 
thought, "at home." 

The General Court and the local courts had a civil jurisdiction 
that was unqualifiedly concurrent, and a criminal jurisdiction that 
was concurrent except for reservation to the General Court of an 
exclusive original jurisdiction of capital felonies. The jurisdiction 
of that Court being, however, in all cases superior — because created 
by Congress — any civil suit or criminal proceeding begun in a local 
court could, before trial, be removed to "the General Court" by a 
writ of habeas corpus or of certiorari. 36 Now, (1) it appears evident 
that only rarely would such a writ be issued from a General Court 
(say in Ohio) when the facts would be triable in a distant county (say 

56 Mr. Blume has pointed out that until 1795 the Court issued such writs 
under its common law powers, although their employment was incidentally 
assumed in the statutes (as, for example, in provisions for fees) — W. W. 
Blume, Supreme Court of Michigan Territory, 5: xi. Their employment was 
explicitly provided for in 1795 — T. C. Pease Latvs of the Northwest Territory 
(I.H.C. 17), 156. 



in Illinois). 57 But if so issued, the facts would be tried in that county 
before such judges of the Court as should next sit therein on circuit 
(or under special commission as a court of oyer and terminer) ; after 
which, the findings being certified to the Court whence the precept for 
trial of the issues of fact had issued, questions of law would then be 
argued before it, and the judgment entered in that Court. Far more 
likely, (2) would be removal from a local court to a General Court 
which happened to sit in the appropriate county when a suit or prose- 
cution was awaiting trial, in which situation all issues would be tried 
by it and judgment entered. And equally probable, (3) and quite 
the same in result would be the case of a suit or prosecution begun 
in a General Court sitting on circuit (or as a court of oyer and termi- 
ner) in the appropriate county. 

So long, as the courts, civil and criminal, held in the particular 
counties by judges of the General Court were truly merely sessions of 
the General Court, it is manifest that no writ of error could issue to 
the Court on circuit. It is readily conceivable, however, that a motion 
might be made for a new trial before the Court in bank. 5s What was 
actually done can be known, if ever, only after publication of the 
Court's original record. 59 In the single case mentioned in Governor 

57 It has been pointed out that this was required by the statutes of the 
Territory in both civil and criminal cases — ante at notecall 45, and again 
as to criminal cases at notecall 51. There certainly were cases of witnesses 
who were residents in Illinois who had to testify in cases tried in Vincennes 
(the merchants and leading citizens of each place were much at home in 
both) or possibly farther east, as Jesse Thomas represented in 1808 in a 
report to the House of Representatives. But the statement, in a memorial 
from Illinois in 1805, that "a considerable proportion of the inhabitants of 
the Illinois are obliged, several times a year, to travel as officers, as jurors, 
as witnesses, as suitors in the National Court holden at Vincennes" over the 
wilderness between Vincennes and Kaskaskia (italics added) must be dis- 
missed as colossal exaggeration in general and as irreconcilable with the 
law as regards jurors. See Philbrick, Latvs of Indiana Territory (I.H.C. 21), 
clvi n. 2. 

58 However, before which court that motion would have been made would 
have depended on whether English practice was observed or whether colonial 
practice had reached the modern American form. I should suppose, in the 
"home" Court in bank. And as respects motions in arrest of judgment and 
for judgment non obstante veredicto — the Court on circuit being truly the 
General Court — I should suppose those would have been made to the judge or 
judges on circuit. Such details can only be ascertained from records. Dean 
Pound's account of appellate procedure suggests general conformity in the 
late 1700's to English practice — R. Pound, Appellate Procedure in Civil Cases 
(1941), ch. 3. 

3 <J It exists, but my examination of it years ago was not only hurried but 
made with none of the matters in mind which are here under discussion— 
Philbrick, Laws of Indiana Territory (I.H.C. 21), cv n. 1. 



St. Clair's correspondence which involves these problems, the proce- 
dure adopted was inconsistent with the writer's view that a decision 
by a General Court on circuit could not be brought by writ of error 
before another General Court for review. 00 

It is clear that the local courts were bound to gain prestige at the 
expense of the General Court unless the confidence of the people 
in the outlying counties of the Territory could be held through the 
work of the territorial judges on circuit and in the courts of oyer aud 

Unfortunately, the judges of the Northwest Territory (like the 
governor 61 ) were so often absent from the Territory as virtually to 
paralyze both the legislative and judicial branches of government. 
Even when not absent, the expense' 1 - and discomforts of trips of hun- 
dreds of miles, and difficulties of securing the escorts which at least 
some deemed necessary, made sessions of the Court on circuit extremely 
rare. Since the Ordinance required the presence of at least two judges 
to hold a General Court, this was another great difficulty until 1792, 

60 Judge Turner held a General Court in the Illinois Country early in 
1795, and was guilty of improprieties for which the Attorney General de- 
clared him subject to impeachment — post n. 68. On June 3, 1795 Governor 
St. Clair wrote to William St. Clair at Cahokia (clerk of the common pleas 
of St. Clair County) that the proceedings must be "set aside," since the 
Court, under the statute, should have been held in June, "and this was held 
in February, and March or April," and so no court. Suggesting as one way 
to this end, a petition to Congress (which in fact became the basis of the 
Attorney General's opinion ) , he then added that under certain conditions 
Judge Symmes would be in Illinois that summer "and hold the court as it 
ought to be held"— W. H. Smith, St. Clair Papers, 2: 373-74. In a later 
official report to the Secretary of State he wrote: "The case involving the 
goods that had been seized on the Wabash was dismissed by Judge Symmes 
and the goods restored;" — this, presumably, then, at Vincennes, and a suit 
pending there — "and in the case of that against those that were seized on 
the Ohio and sent to Kaskaskia. and there condemned and sold, a writ of 
error has been brought, and the condemnation will probably be reversed" — 
ibid. 397; Carter, Territorial Papers, 2: 544. Doubtless Judge Symmes 
issued the writ of error — he and Turner had joined earlier in 1795 in passing 
a law that gave him that power — T. C. Pease, Laics of the Northwest Terri- 
tory (I.H.C. 17), 156. The same law makes it certain that the writ was 
returnable to a General Court in Ohio that autumn. It would seem that a 
motion for a new trial was not made before the General Court in bank. On 
American departure from English practice as respects writs of error see 
R. Pound, Appellate Proceedings in Civil Cases, 88-94. 

61 See post cccxcvi-vii. 

,;2 By the law of 1795 the Territory assumed these expenses — T. C. Pease, 
Laws of the Northwest Territory {I.H.C. 17), 158. Judges Symmes and 
Turner were reimbursed by Congress in 1792 for some expenses incurred 
"to go the Circuit" in 1790 — Carter, Territorial Papers, 2: 395. 



when Congress amended the Ordinance by providing "that any one 
of the supreme or superior Judges of the said territories [northwest 
and southwest of the Ohio], in the absence of the other Judges, . . . 
hereby is authorized to hold a court. ' ' 63 But this did not cure the evil. 
The President and the Secretary of State chafed under these (and 
other) official delinquencies, and despite hesitancies arising from re- 
gard for the independence of the judiciary did what they could to 
correct them. 0i Portions of the older territories went for years with- 

es Act of May 8, 1792— Carter, Territorial Papers, 2: 396. Note the word 
"superior," which may or may not have been used with the county courts 
in mind — or only the circuit courts. 

s* It is worth while to show clearly the hesitancy with which the execu- 
tive department dealt with the territorial judges. If Congress had held fast 
to its absolute control of the territories (post cccxc-ii). No difficulty could 
have existed. Of the judges of the Northwest Territory Judge George 
Turner gave most concern to President Washington and the Secretary of 
State. In a letter of Nov. 9, 1792 Jefferson informed him that he was charged 
by the President to call to his attention the need of territorial legislation, 
which was made impossible by the absence of some legislators; "not doubt- 
ing" that the public need would be put above personal considerations — 
Carter, Territorial Papers, 2: 416. On Feb. 7, 1793 Secretary Sargent wrote 
to the Secretary of State of "the public embarrassments, and injury" to the 
Territory which resulted from the absence of the judges, Judge Putnam hav- 
ing long been in the East, and Judge Symmes having also left it, "thereby 
virtually effecting a total abdication upon the Supreme Bench of this Terri- 
tory," — ibid 3: 407. On Feb. 26 the President's secretary informed Jefferson 
that the President desired to know whether Turner had gone to the Territory; 
and, if not, that he should "be pressed to go immediately" — ibid. 2: 442. On 
March 10 Washington inquired of Jefferson whether Turner had left; if 
not, he desired the Secretary's opinion as to whether the President's inter- 
ference was necessary, "as well as the authority under which the President 
may exercise it." He regarded the long absence of Governor St. Clair and 
"some of the Judges" as "encouraging a spirit of riot and disorder, by re- 
laxing the energy of the laws" — ibid. 2: 443. The reply of the Secretary 
of State, March 12, was that Judge Turner was still in Philadelphia — 
National Archives: State Department, Miscellaneous Letters. Still only 
mild measures were resorted to. On March 30 Jefferson sent Turner the 
letter of Secretary Sargent, "not doubting" that he would duly respond to 
the urgent call for his presence — ibid. 2: 449. On April 5 the President 
expressed the "surprise and mortification" caused him by the Judge's con- 
duct; if he should still have made no preparations for leaving, the President 
desired Jefferson to express to him, in the President's name, "as far as my 
powers will authorise you to do, that I can no longer submit to such abuses 
of public trust without instituting (if I have powers to set it on foot) an 
enquiry into his conduct" — Carter, ibid. 2: 450. Finally, on April 17, Jef- 
ferson wrote to Turner that the President considered it necessary "that 
some legal inquiry" should be made into the absence from the Territory of 
its judicial and legislative officers, and had charged Jefferson to inform the 
Judge that the Attorney General had been "instructed to consider and to do 
what may be proper on the occasion" — ibid. 2: 452. 

There is also in the Jefferson Papers (Library of Congress) a mem- 
orandum from Attorney General Randolph to the Secretary of State con- 



out circuit courts or jail deliveries. 65 Acting Governor Sargent, com- 
plaining to the Secretary of State in 1797 of the absence of two judges 
to hold a Court, wrote: "the Term passes off in many Counties with- 
out avail for the want thereof . . . and I knoAV nothing that can have 

cerning Judge Turner (v. 80, fol. 13910) which is dated "1792 (?)'". This 
was, perhaps more likely, of April 1793. It advised that Governor St. Clair 
be instructed: (1) to transmit to Judge Turner whatever "authoritative 
intelligence . . . concerning the complaints of the people against his absence" 
was in his possession; if none, then (2) "to represent to Judge Turner, with- 
out undertaking to order in any manner, the inconvenience, in a judicial view, 
which the Territory sustains by his absence: and 3. to summon Judge Turner 
to attend at the seat of government, as a member of the legislature." The 
result was a call by St. Clair for a meeting of the legislature on Sept. 1, 
1793 — Carter, Territorial Papers, 3: 412. But he and Judges Symmes and 
Turner did not get together until May 1795 — post n. 84 of Sec. V. Why the 
Attorney General should have thought that St. Clair, as governor or as one 
member of the legislature, should have greater power over a territorial judge 
than the President had, is not apparent. St. Clair himself realized fully his 
lack of power — ibid. 2: 246. 

In comparison with Judge Turner's absences those of Judge Symmes 
of the Northwest Territory were secondary, although he stayed in the East 
from Feb. 1793 to Sept. 1794 despite what is narrated above — B. W. Bond, Jr., 
ed., The Correspondence of John Cleves Symmes (1926), 163 n. And those 
of Judge Griffin of the Indiana and Michigan territories were trivial. 

65 a grand jury of St. Clair County in 1792 presented "that the non 
attendance of the Judges of the Supreme Court . . . since . . . [1787 — they 
were appointed in Oct.] is a Very great Grievance." This presentment, by 
order of three French judges of the Court of Quarter Sessions, was for- 
warded to Governor St. Clair with a request that it be forwarded to the 
President — Carter, Territorial Papers 2: 373. Up to the end of 1792 no 
Court had been held in St. Clair County, and only one in Washington County 
(Marietta)— ibid. 3: 389. Secretary Sargent, in a letter of Feb. 6, 1793 to 
Judge Symmes upbraiding him for insisting on leaving the territory when 
the other tAvo judges were in the East, stated that the inhabitants of Knox 
and St. Clair counties had "publicly complained . . . that this Court has 
not been yet known amongst them" — ibid. 3: 406. This seems to be a refer- 
ence to the preceding petition, though I know of no similar evidence from 
Knox (Indiana). If it be so, note that Attorney General Randolph, the 
President, and Secretary of State were seemingly unacquainted with it in 
April 1793 — see last preceding note. Two circuit courts in St. Clair County in 
1795 (one held by Judge Turner — ante n. 59; the other by Judge Symmes to 
remedy the situation Turner created — ibid. 544), were the only ones held 
there from 1787-1801. In addition there was one court of oyer and terminer 
held at Kaskaskia in 1795 — ibid. 543; and this seems to have been the last 
one held in either the Wabash region (Knox County) or the two Illinois 
counties until after the creation of Indiana Territory in 1800 — see Philbrick. 
Laics of Indiana Territory (I.H.C. 21), clvii-clviii. 

Under the new territorial government the circuit courts seem to have been 
held more regularly. Nevertheless, as respects the General Court in bank, 
at Vincennes, in 1807 (April 8) a grand jury presented "as a grievance the 
non-attendance of the Honorable Thomas T. Davis at this and the preceding 
General Court"— Record of the General Court (MS), 232. As respects Illinois 
Territory, in June 1813 a grand jury of St. Clair County (Common Pleas, 



stronger tendency to produce Disaffection to the United States." 66 
Even down to very much later times this absence of judges (and of 
other officers) remained a problem in territorial administration. 67 

There were other reasons, probably, why the General Court lost 
ground. The conduct of Judge Turner in the Illinois Country in 
1795 was such that the Attorney General held him liable to impeaah- 
ment, or trial before the General Court, on charges "of oppression and 
gross violations of private property. " 6S He was never tried, but re- 
signed. Riddance of Judge Symmes was for years desired by Gov- 

Cahokia) presented "the non-residence and non-attendance of the judges of 
the General Court of said Territory as a Public Grievance to the Inhabitants 
of said Territory" — Nat. Arch.: State Dept., Appointment Papers, Miscel- 

In Michigan Territory only two circuit courts were held, seemingly, in 
the eight years preceding 1805 — Philbrick, Laws of Indiana Territory (I.H.C. 
21), clvii. 

In Mississippi Territory the situation was as bad for many years as in 
the Northwest Territory, except that the cause was not primarily that of 
the judges. Of the settlements on the Tombigbee and Alabama rivers, nearly 
three hundred miles from Natchez, Judge Rodney wrote in 1803 "that 
part of the Territory has been deprived for years of the benefit of a Superior 
Court" — Carter, Territorial Papers, 5: 298. Late in 1806 he wrote: "for near 
two years past ... we have had but Two Judges in this part Of the Terri- 
tory, and one ... is very seldom Able to attend the Courts" — ibid. 489. After 
this had continued for years the judge mentioned was impeached for habitual 
intoxication and resigned. In 1809 a new county (Madison) was created far 
north above the Great Bend of the Tennessee River, four hundred miles from 
Natchez. The attorneys of the Territory informed Congress that it was 
too distant for the territorial judges to hold a Superior Court there. The 
Acting Governor wrote: "The Judges will not, in fact cannot attend the 
Courts there" — ibid. 743, 744. At the end of 18.09 there had been no court 
of criminal jurisdiction held there — ibid. 6: 35; and undoubtedly none of 
civil jurisdiction, though the General Assembly mentioned only the criminal 
court, obviously considering it more needed. These conditions, in what 
became Alabama, continued for many years. Judge Harry Toulmin com- 
plained in 1815 that he served a district east of Pearl River five or six times 
as large as that west of Pearl River to which three judges were assigned; 
no superior court had ever, he believed, been held in a county recently added 
to his district; he rode 1568 miles yearly, and the contemplated early divi- 
sion of one county into three would add 1600 miles — ibid. 6: 620. 

eeibid. 2: 618. 

6T Mr. Hicks has referred to cases in Idaho and Wyoming — J. D. Hicks, 
The Constitutions of the Northwest States (1923, University of Nebraska 
Studies, vol. 23), 8; and see E. S. Pomeroy, The Territories and the United 
States, 1861-1890: Studies in Colonial Administration (1947), index s.v. 
"absenteeism." Also post cccxcvi seq. 

ss Report by Attorney General Lee to House of Representatives, May 
9, 1796- — ASP, Misc.. 1: 151-52; report by the House committee approving 
trial by the General Court — ibid. 157; Carter, Territorial Papers. 2: 509-18, 
544; W. H. Smith, St. Clair Papers, 2: 372-74. With reference to troubles of 
Judge Turner in Knox County see ibid. 330; Carter, Territorial Papers, 2: 
512, 513, 522, 544. 



ernor St. Clair and Secretary Sargent, but a legal basis for his sug- 
gested impeachment 09 was lacking. Hmvever, his great interests in 
territorial lands and the notoriety of his questionable acts in market- 
ing them must certainly have affected unfavorably public confidence 
in the General Court. 70 At almost the beginning of this situation 
Jefferson suggested to the President "the establishment of a proper 

69 "Convinced that Judge Symmes ought to be removed from the Bench 
of the Supreme Court of your Territory. I beg you immediately to collect 
and state those facts, on which an impeachment may be founded" — Secretary 
of State Pickering to Governor St. Clair, Aug. 2, 1799, Carter, Territorial 
Papers, 3: 60. 

7 <> Secretary Sargent and Judges Samuel Holden Parsons and Rufus 
Putnam very clearly held their positions by virtue of their activities for the 
Ohio Company; and many of the members of Congress were interested in the 
Scioto speculation that was tied to the Ohio Company's purchase — see Dr. 
Carter's citations, Territorial Papers, 2: 417 n. 88. Governor St. Clair called 
the President's attention in 1789 to the dangers involved — Carter, Territorial 
Papers, 2: 206; and repeatedly in later years to the attention of the respon- 
sible officers of government. Actual influence of the judges' interests is 
traceable in problems of legislation — (estates in common) W. H. Smith, St. 
Clair Papers, 1: 146, 2: 64-67; T. C. Pease, Laws of the Northwest Territory 
(I.H.C. 17), xxii. Likewise in territorial politics, particularly as respected 
county seats and the creation of county seats, the struggle over which had 
fatal consequences for Governor St. Clair — W. H. Smith, St. Clair Papers, 
1: 214, 220, 221, 2:477-79, 515-23. Likewise in the judicial problem of giving 
a single judge power to hold a general court — ibid. 1: 190-91; Carter, Terri- 
torial Papers, 2: 499-500; ASP, Misc., 1: 1160. 

Robert McClure, correspondent of Gallatin and purchaser from Symmes 
of land lying outside his original grant, wrote: "Judge Symmes will be con- 
cerned in a great many actions and if they go against him in the lower 
Court he will immediately Certiorari them to the Supreme Court where he 
himself sits Judge .... last summer Judge Symmes was indicted for re- 
tailing whiskey the Traverse jury gave it against him and he immediately 
removed it to the Supreme Court" — Dec. 14, 1796, New York Historical Society: 
Gallatin Papers (from transcript in Nat. Arch.: State Dept., Misc. Letters). 
Another letter, incomplete and unsigned, endorsed: "Copy to the Secretary 
of State 2d Deer 1799," reports actual assurances by Symmes of "removal" 
to the Supreme Court "should it go against them in the common pleas," and 
that he would leave writs with the clerk of the General Court for the pur- 
pose — ibid, (seemingly from Ohio State Library: St. Clair Papers). Though 
the letters use "removal," there could be such only before trial; after ver- 
dicts below there could only be judgments and proceedings in error ("appeals" 
from local courts). See also petition from inhabitants — Carter, Territorial 
Papers, 3: 30. 

On the land proceedings of Judge Symmes see ibid 2: 70 n., 342-4S; 
W. H. Smith, St. Clair Papers, 2: 455, 465 seq., 480-81, 507-8, 536. Judge 
Turner bought from Symmes land to which, Governor St. Clair believed, 
the latter had no title, and this led to unpleasant controversy — ibid. 2: 212 n., 
218, 222n. St. Clair had also bought similar land and, so he said, gone much 
farther than Turner with improvements before discovering lack of title — 
letter of July 27, 1791, Ohio State Lib.: St. Clair Papers, copy read in State 
Dept. However, Judge Symmes later acquired title — see Carter, Territorial 
Papers, 2: 343 n. 73. 



judicature for deciding speedily all land controversies between the 
public and individuals," 71 but nothing was done either as to that or 
to prevent personal improprieties in suits involving the judge's per- 
sonal interests. 

Another matter which greatly hurt the prestige of the Ordinance's 
judicial system was the provision made for one-judge courts in 1792. 
The statute, quoted above, allowed such courts only "in the absence 
of the other judges." The great difficulties caused by the same word 
in the provision, in another law, that the secretary of the Territory 
should act as governor in case of the latter 's ' ' absence, ' ' are elsewhere 
discussed. 72 In both cases, assuming that the absence intended was 
absence from the Territory, months passed when neither the governor 
nor any of the judges could be certain of each other's absence, pres- 
ence, or whereabouts. 73 Nevertheless single judges did at times go on 
circuit. Both in the Northwest Territory and elsewhere criticisms of 
these one- judge courts were rife, and for many reasons. 

In the first place they involved a very great concentration of 
power. Two years after they were authorized Governor St. Clair 
pointed out the dangers of such power in his Territory where the in- 
terest of the judges was so great in land, proposing that an appeal be 
allowed to the United States Supreme Court. 74 There were two other 
objections to them that were perhaps even more important. So many 
references were made to decisions by more than one judge which were 
"overruled" or "reversed" by a single judge that there must, it would 
seem, have been holdings of a larger court which were impugned 
by later inconsistent decisions of a single judge in similar cases. 75 The 

71 Jefferson to Symmes, Dec. 4, 1791 — Lib. of Cong.: Jefferson Papers. 

72 Post cccxcvi seq. 

73 Post cccxcvii. 

7i See his letter, Dec. 15, 1794 to the Secretary of State — Carter, Terri- 
torial Papers, 2: 499; also in ASP, Misc., 1: 116. Compare Carter, 3: 57. 

75 The writers on Indiana courts have in general so written — notably in 
L. J. Monks, ed., Courts and Lawyers of Indiana (3 vol. 1916), 1: (for 
example), 727. Talk about "appeals" from the judges on circuit "to them- 
selves" — that is to a General Court in which they might sit alone or with 
fellow judges — covers the same fallacy even after 1795 (post xxxvi-ix). Dr. 
Farrand adopted some of the most erroneous statements in his generally 
most accurate and useful thesis — M. Farrand, The Legislation of Congress for 
the Government of the Organized Territories of the United States, 1789-1895 
(1896), 27 n. 58. After stating the one-judge provision of the act of Con- 
gress of 1792 he says: "An appeal lay to the superior court from the inferior 
courts, in which the presence of two judges was required. So a suitor was 
forced to appeal from the decision of two men to that of one" — ibid. Every 



importance of such cases does not lie so much in the superficial facts 
stated as in their effect upon popular regard for the Court. The 
local courts were manned by several judges ; the General Court was 
known to have three judges, if they attended to their duties. The out- 
lying counties were slighted by the rarity of the courts held within 
them, and the attendance of only single judges, and they justifiably 
resented such neglect. Nor were direct conflicts between judges, such 
as those between Judges Turner and Symmes in the successive sessions 
of 1795 at Kaskaskia and Vincennes — or the rumors just referred to 
of single judges "overruling" several judges — calculated to preserve 
respect for the Court. There was still another reason for complaint as 
respected criminal cases. As already said, the General Court had 
exclusive original jurisdiction over capital felonies. All that the 
local courts could do was to hold such prisoners for trial before a terri- 
torial judge, and although courts of oyer and terminer were more 
numerous than the regular civil-and-criminal General Courts on cir- 
cuit they were not sufficiently frequent ; besides, the prisoners often 
escaped from the miserable jails. 76 The local courts could attend 
to all civil and criminal business except these felonies; the duty to 
attend to them was so primary that all territorial courts were rather 
generally known as courts of oyer and terminer ; and the unsatisfac- 
tory discharge of the one function detracted from whatever credit 
was due for the better performance of other functions. 

Such one-judge courts were originally thought to be justified by 
the small number of judges available for riding circuit. That even 
single judges held the courts so irregularly is understandable in view 
of the hardships and even perils of circuit riding 77 and the immense 

adjective and every conception and every proposition in this passage is in- 
correct as respects the Northwest Territory before 1795. In Michigan Terri- 
tory, where they had for a time a true "circuit system" instead of the "nisi 
prius system" set up in the Northwest Territory, such language as that above 
referred to would, for a time, have been correct. See W. W. Blume, Supreme 
Court of Michigan Territory. 5: xxiii-xxiv. 

76 See references in n. 10 ante. 

77 Judge Symmes. wishing to go to the Illinois Country, wrote in Jan. 
1798 to Acting Governor Sargent: "A rout by land will be attended with 
high waters in all the rivers which we must swim with danger or raft with 
difficulty with no tools for the purpose. We shall meet with no pastures 
in the woods for our horses; the days are short and cold, of course can 
make but little speed; the pararies ancle-deep in water for many days travel 
at this season; all the roads miry and slippery, or hard frozen & rough. . . . 
When I had the honor of accompanying General St. Clair into that country 
in September 1795, we were twenty nights in the woods when the days were 



size of original counties. Knox County, for example, included until 
the creation of Indiana Territory in 1800 a large part of what is now 
Illinois as well as virtually all of what is now Indiana. 78 Governor St. 
Clair was never able to secure a full court at any point west of Cin- 
cinnati. 79 Conscientious judges realized the objections to which the 
courts they held were open. 80 It was only after many years that Con- 

long and season temperate, and wild food for our horses in the greatest 
plenty; yet under these favorable circumstances, we suffered in Many re- 
spects extremely; not to mention the loss of four of our horses stolen from 
us in one night by the Indians." He preferred in the winter season to go by 
boat, in which stores and bedding could easily be transported, and requested 
a boat with a "small party" of oarsmen (ten), not having the means to hire 
them himself — Jan. 18, 1798, Massachusetts Historical Society: Sargent 
Papers (copy read in State Dept.). 

Judge Symmes always wished an escort, perhaps in part because it gave 
dignity to his office. In 1791 he wished a boat and escort of soldiers up the 
Ohio from Northbend to Marietta— letter of Sept. 8, 1791 to St. Clair, Nat. 
Arch.: State Dept., Misc. Letters. In reference to requests in the following 
January for escorts on circuit, the Secretary of State consulted the Presi- 
dent; would he furnish military escort or Congress provide civil? — Jeffer- 
son to "Washington, March 28, 1792, Lib. of Cong.: Jefferson Papers. A boat 
seems to have been provided early in 1792 "for the purposes of Civil Govern- 
ment," but was appropriated by the army in the following winter. Secretary 
Sargent later sought from General Wilkinson assurances of an escort up the 
Ohio from Cincinnati in the spring of 1793, the Secretary of War having 
ordered General Wayne to furnish escorts for the governor, acting governor, 
or judges when on public business — Carter, Territorial Papers, 3: 387-89. 
But this only secured Wilkinson's answer that he would order Wayne to 
furnish escorts when consistent with public service— letter cited ibid. 388 n. 
99. In March 1795 Judge Symmes again sought an escort from Marietta to 
Vincennes to hold a General Court in May — letter March 26 — W. H. Smith, 
St. Clair Patters, 2: 339-40. 

On the other hand Acting Governor Sargent wrote, as he started on Sept. 
8, 1797 from the Rapids of the Ohio for Vincennes and the Illinois Country: 
"my ivhole Force three hunters — but the adventure seems to me absolutely 
necessary" — Carter, Territorial Papers, 2: 626, 3: 485, 487. 

78 See maps inside back cover of Philbrick, Laics of Indiana Terriory 
(I.H.G. 21). 

™ W. H. Smith, St. Clair Papers, 1: 194-95. 

so The situation was different when one of the judges was assigned 
permanently to "localized" duties in an outlying region. The objections 
then became more personal to the judge, no matter how conscientious he 
might be, and concerned less the relations between his court and the home 
General Court. Judge Harry Toulmin, who attended for years to the civil 
and criminal cases of an area in the Mississippi Territory (in what is now 
southeastern Mississippi and southern Alabama) estimated by him at one 
hundred thousand square miles, in addition to admiralty and other federal 
business, wrote in 1815: "I have so great an aversion to the plan of one judge 
presiding in the same courts a succession of years as I do, — and have wit- 
nessed so much the practical evils resulting from it; that I would rather 
ride to Madison county once a year, (though nearly 400 miles off, — and 
mostly through a wilderness) than attend one half of the courts [of 7 coun- 
ties] which I now do in my own neighborhood, as it were" — Carter, Terri- 
torial Papers, 6: 621. 



gress became convinced that courts of single judges should not be 
permitted, and in several territories they were forbidden. 81 

There were probably very few citizens who recognized the circuit 
court as the General Court on circuit, in distinction from a localized 
tribunal inferior to the General Court. Its nature was made more 
obscure by legislation in 1795. The governor and judges, in their 
revised law of that year on courts, provided in one section (8) that 
there should sit twice yearly in the Territory, at Marietta and at Cin- 
cinnati, "a Supreme court of record, which shall be called and stiled, 
The General court," and each and all the judges thereof should have 
power to issue, whenever there might be "occasion" so to do, "writs 
of habeas corpus, certiorari, and writs of error, and all remedial and 
other writs and process, returnable to the said court." It then, in the 
next section (9), proceeded: 

Provided always, That upon any issue joined in the said General- 
court, such issue shall be tried in the county whence the cause was 
removed, before the judges aforesaid, or any one of them, as a circuit 
court; who are hereby empowered and required, if occasion require, 
to go the circuit, twice in every year, into the counties of St. Clair and 
Knox, and such other counties as may hereafter be erected, to try such 
issues of fact as shall be depending in the said General Court, and re- 
moved out of either of the counties aforesaid; (when and where they 
may try all issues joined) ; or to be joined, in the same General court, 
and to do, generally, all those things that shall be necessary for the 
trial of any issue, as fully as justices of nisi prius in any of the United 
States may or can do. 82 

What did this statute mean? In the margin of the laws as pub- 
lished in 1795 the above-quoted section is analyzed as meaning: "Cir- 
cuit courts established in St. Clair, Knox, and other counties"- — which 
only repeats the vague language of those who have written of the 
judicial system of the time without distinguishing "nisi prius courts" 
held by judges of the General Court on circuit and circuit courts of 
an independent but inferior status. Up to 1795 the courts in question 
had been true nisi prius courts. The section of the law just quoted 

si Compare sec. 10 of the organic act of Missouri Territory, June 4, 
1812— U. S. Statutes at Large, 2:746; act of Feb. 24, 1815 relating to Indiana 
Territory — ibid. 3: 213; act of Feb. 5, 1825 (sec. 6) relating to Michigan 
Territory — ibid. 4:81. Perhaps more judges were generally available, per- 
haps circuit riding was no longer a hardship; I find no general law pro- 
hibiting such courts. Compare post following notecall 82, also n. 87. 

82 T. C. Pease, Laws of the Northivest Territory (I.H.C. 17), 156-57. 



speaks at greatest length of causes "removed" from the counties of 
Knox and St. Clair, and the procedure prescribed by it as to issues 
of fact involved in such cases is precisely that required by the statutes 
since 1788, as already explained. 83 It is, indeed, stated that the judges 
sent on circuit to try these issues of fact will try them "as a circuit 
court, ' ' but that did not mean that their courts would be independent 
and inferior courts. It is also said that the judges on circuit shall act 
"as justices of nisi prius in any of the United States." And in still 
another section' (10) the law very explicitly stated the jurisdiction, 
original and in error, of the General Court ; but the only courts whose 
errors were declared to be subject to correction, and whose judgments 
should be reversed or affirmed, were courts "holden for the respective 
counties"- — that is, "the quarter-sessions . . . and common pleas, or 
any other court [of] the respective counties." Nisi prius courts were 
held in one or another county, but they were not courts of or courts 
held for that county. 

The things the statute did were four. First, it established fixed 
seats of justice in Ohio for the General Court as such. Second, it 
declared explicitly that as respected issues of fact in certain counties 
they should not be tried in bank, but in the manner stated. Third, it 
implied that in the only other counties then existing — namely those 
of which Marietta and Cincinnati were the county seats — original 
jurisdiction should be taken, in the General Court of each, solely of 
causes of action therein arisen or of crimes there committed, so that 
all issues of fact would be tried before the Court in bank. 84 Fourth, 
provision was expressly made in another section of the law (12) for the 
exercise through courts of oyer and terminer of the Court's exclusive 
original jurisdiction over felonies of death. 

In addition to these things done there were two things, far more 
important in their logical implications, which the law did not do. In 

ss If I understand Mr. Blume's statement that "By the terms of the 
statute it is clear that the General Court was no longer to sit in bank for 
the trial of issues of fact in civil cases" (W. W. Blume, Supreme Court of 
Michigan Territory, 5: xv) the "no longer" is misleading as respects past 
usage, and as to Washington and Hamilton counties misleading as to future 

84 It did not imply, though a layman would suppose it did, that issues 
of fact arising in civil actions or criminal prosecutions begun in the Court 
at Marietta or Cincinnati would be tried in bank, even though the cause of 
action had arisen or the crime been committed in St. Clair or Knox counties. 
As earlier indicated fundamental principles of common law forbade this. 



the section last cited it referred only to the power of the General Court 
''to deliver the jails of all persons who . . . shall be committed for . . . 
felonies of death," and provided for the exercise of its power "for 
that end." No mention is made of, or words used broad enough to 
cover, a court of general criminal jurisdiction exercisable on circuit. 
And, quite in line with that omission, no provision whatever is present 
for the exercise on circuit of the Court's general civil jurisdiction. 
So far as one can judge from the absence of positive provisions re- 
lating to civil jurisdiction — and the plain implication respecting crimi- 
nal jurisdiction carried by the section just cited — it would seem that 
the legislators intended to abolish the general system of nisi prius 
courts trying civil and criminal cases under the Court's unlimited 
original jurisdiction. That is, intended this as respected St. Clair, 
Knox, "and such other counties as may hereafter be erected." Such 
an inference, however, is contradicted by all the later talk of holding 
"circuit courts" in the western counties, particularly in 1797-1798. 85 
It would not be inconsistent, on the other hand, with the subsequent 
appointment, the same and the following year, of clerks of "the Cir- 
cuit Court" in St. Clair and Knox counties, 86 for circuit sessions of the 
General Court were to be held there to try issues of fact in some cases 
(and also — the same thing under a special name — courts of oyer and 
terminer to try capital crimes). 

On the whole it is fairly clear that the purpose of the statute 
could not have been to abolish the general system of nisi prius courts 
trying civil and criminal cases in St. Clair and Knox "and such other 
counties as [might thereafter] be erected." The judges certainly 
knew what the law meant, and when Acting Governor Sargent urged 
Judge Symmes to go on circuit in 1798 the latter did not reply that 
the court could have no legal basis; but on the contrary (though he 
never went) replied: "the dignity and safety of the general govern- 
ment seems to demand this duty from me. ' ' S7 

83 See particularly Carter, Territorial Papers, 3: 493-94, 498, 502. 

ss Ibid. 442, 443, 464. 

s~ Letter of Jan. 18, 1798 cited ante n. 77. Sargent had just come from 
Illinois — ante end of same note; he was greatly agitated over the possibility 
of war, and even if the statute of 1795 had abolished the circuit sessions of 
the Court he might have overlooked the fact. In assuming that one judge 
could hold the Court (notwithstanding that Judge Joseph Gilman was also 
seemingly in the Territory) Sargent might well have assumed that the law 
of 1795, just discussed, gave legal basis to the practice since 1792 of disre- 
garding the limitation placed by the federal act of 1792 (ante n. 63) upon 
its sanction of one-judge courts. 



The first law of Indiana Territory regulating its courts repro- 
duced with slight changes the above law of 1795. Nevertheless those 
changes make it a trifle easier to read the murky verbiage of section 9 
as meaning that the trial of issues of fact in cases theretofore removed 
into the General Court, before the one or more of its judges who were 
directed ''to go the circuit ... in each county every year," was only 
a part of their nisi prius duties. 88 In the revision of 1807 there was 
a return to some of the most puzzling language of the act of 1795, but 
this was added : 

That the Circuit court shall render a final judgment, and issue 
execution upon verdict found in the said Circuit court, in the same 
manner that the General court has power to do, unless a bill of excep- 
tions shall be filed to the opinion of the said Judge, or some other good 
cause shewn, which in the opinion of the said Judge holding such Cir- 
cuit court, may render it necessary that the determination of the Gen- 
eral court should be taken thereon; and the said Circuit court shall 
have power to grant and order new trials. 89 

It is manifest that the grant of these three powers to the circuit 
court constituted a great step toward making it a distinct tribunal and 
toward creation of an appellate court system. The immediate result 
was a mixture of an appellate and a nisi prius system. In particu- 
lar, supervisory control by the General Court would have been exer- 
cised under the latter through a motion for a new trial." In other 
territories, before or after this, the same tendencies were visible. 91 


Along another line, development had taken place that was a de- 
parture from the system established by the Ordinance. That had 
given to the General Court only a common law jurisdiction. 92 We 

ssphilbrick, Laws of Indiana Territory (I.H.C. 21), 10-11. 

ss IUd. 231. , 

9° After referring to the power of jail delivery generally, and to special 
courts of oyer and terminer, the statute refers to "the said Circuit and 
Nisi Prius courts" as though the latter were the criminal courts only. 

9i For Mississippi Territory see Carter, Territorial Papers, 5: 360 (Judge 
Rodney's letter of Dec. 12, 1804), 361-66 (memorial of territorial legislature, 
Dec. 14), 373 (Rodney's letter of Jan. 24, 1805). On Michigan see the account 
in W. W. Blume, Supreme Court of Michigan Territory, 5: xxvi seq. 

92 Until the unreported debate of April 26, 1787 a chancery jurisdiction 
had been included — Journals of the Continental Congress, 1774-1789, 30: 253, 
404; 31: 670; 32: 242, 281 and n. 1. (The Library of Congress ed. is always 
the one cited.) Another amendment of exceeding importance made that 



have already seen that it was assumed by the territorial legislature 
that it might create local courts which could share that jurisdiction 
concurrently with the General Court. The legislature also assumed 
that the restriction placed upon the jurisdiction of the General Court 
by Congress did not require it to limit similarly the jurisdiction of 
the independent courts which it created in each county. The third 
law that it passed in 1788 established a judge of probate in each 
county. 93 Such a court being indispensable, and Congress not having 
passed any legislation supplementary to the Ordinance, the action of 
the legislature was certainly not surprising, but here again one must 
wonder at both the original limitation set by Congress and at the 
failure later to correct it. The establishment of the orphans' court 
in each county in 1795 was another act unjustified by the organic act. 94 
The law of 1795 on divorce was still another. 95 Appeals — unknown to 
a common law jurisdiction — were allowed to the General Court from 
the probate and the orphans' court. 90 Most notable was the attempt 
to secure a chancery jurisdiction, which had been included in drafts 
of the Ordinance for most of the time it was in preparation but was 
suddenly and unaccountably struck out. 97 The territorial legislature 
adopted two laws of limited scope from Massachusetts that authorized 
relief — in most states equitable — in certain important situations. 
Massachusetts, however, was a state then and for a long time there- 
after without equity courts, and which allowed much equitable relief 
through common law actions ; and Pennsylvania, from which a heavily 
predominant portion of the statutory system of the Northwest Terri- 
tory was taken, was an even more notable example of the same practice. 
Presumably, Governor St. Clair, who was very familiar with the 
Pennsylvania situation, felt secure in the position that these laws, so 
"adopted" in the usual manner, could be defended as instances of 
common law jurisdiction. 98 By an act of Congress of 1805 the terri- 

same day, for which as in the matter here in question there could have been 
no time for proper consideration, is discussed post cccciii-iv and n. 58. 

as T. C. Pease, Laws of the Northwest Territory (I.H.G. 17), 9. 

'^Ibid. 181. 

ss Ibid. 28. 

se Ibid. 9, 186; in the latter case "to the General or circuit courts" — that 
is to the General Court where most convenient, which would ordinarily be 
to the next circuit session in the county. 

97 Ante n. 92. 

98 See Philbrick, Laws of Indiana Territory (I.H.C. 21), clxiii-clxviii. 
Some old and important material there cited is now more readily accessible 
in Carter, Territorial Papers, 7: 160, 547, 685. 



torial court in all territories in which there was no United States dis- 
trict court was given, in cases involving the United States, the powers 
of the district court of Kentucky, with provision for appeals and writs 
of error from such superior courts of the territories to the Supreme 
Court of the United States in such cases. The question of granting 
equity jurisdiction to the territorial courts had become entangled in 
congressional committee assignments with the question of granting 
appeals from those courts to the Supreme Court, and thus entangled 
with the appellate system of the federal courts." The result was a 
fairly broad but not altogether satisfactory jurisdiction in equity. 100 
The legislature of Indiana, the same year, therefore passed an act es- 
tablishing a separate court of equity. 101 

99 The matter of appeals from territorial courts to the Supreme Court 
was settled (with some initial variations as to mode — direct or first to a 
federal circuit court, — sums involved, etc.) in the 1820's. It is not involved 
in the present discussion. 

The act applied only to territories then existing; no general rule of 
policy applicable to future territories was laid down. The courts of Indiana 
and Missouri territories (but not the same courts! ) were given chancery 
powers in 1816 — post n. 157; though the Indiana legislature had assumed to 
give its territorial court the same powers in 1807 — as noted just below in the 
text. But the territorial court of Michigan Territory was not given like 
powers until March 3, 1823 — U. S. Stat, at Large, 3: 769. Its governor and 
judges had indeed theoretically endowed the court with those powers in 
1805, but Blume finds no trace of their exercise — W. W. Blume, Supreme Court 
of Michigan Territory, 1: 1-li. The territorial legislature had also given 
chancery powers in 1815 to the county courts established that year. 

too Act of March 3, 1805— U. S. Stat, at Large, 2: 338. The jurisdiction 
of the federal district court of Kentucky was unusually broad, equaling that 
of a federal circuit court apart from the latter's appellate jurisdiction. The 
Ordinance had been violated, if its intent was to exclude all jurisdiction other 
than of common law, sometimes by the creation of courts of other than com- 
mon law jurisdiction (ante following notecall 92), sometimes by introducing 
specific powers unjustified by that jurisdiction (ante following notecall 97, 
Philbrick, Laios of Indiana Territory, I.H.C. 21, clxiv n. 4). There had long 
been in this country a strong prejudice against equity which almost cer- 
tainly caused its omission from the Ordinance; it was again manifested in 
a popular memorial the instant the separate court was established and for 
several years thereafter (ibid, clxi, clxiii, clxvi, clxviii). It still seems to 
me, therefore, strange (ibid, clxvi) that the territorial legislature, immedi- 
ately after passage of the federal law, and at the moment it was abolishing 
several' courts, should have directly challenged Congress by erecting the 
separate court of equity. Mr. Blume misconceived my meaning — W. W. 
Blume, Supreme Court of Michigan Territory, 1: xlviii. 

ioi Philbrick, Laws of Indiana Territory (I.H.C. 21), 108. An equally 
bold violation of the Ordinance (not by creating a separate equity court 
but by conferring equity jurisdiction on the Ordinance common law court) 
was made by the governor and judges of Michigan Territory (created by an 
act of Jan. 1805) by a territorial law of July 1805 — W. W. Blume, Supreme 



There is much in the preceding pages that evidences a remarkable 
disregard for the Ordinance as an organic act or constitution for the 
territories. The actions of the territorial legislature respecting the 
judicial system seem to have been sometimes based on the theory that 
in default of legislation by Congress to supplement the Ordinance, 
whatever the legislators did was done for and under full powers from 
Congress. The remarkable inattention of that body to the territories 
for several decades gave some excuse for such an attitude. 

It is not to be forgotten, also, that only very slowly did the rela- 
tion of the territories to the federal system begin to appear, even in 
general outline. A realization of this fact aids one in understanding 
much of what has gone before. It may be excusable, therefore, to de- 
vote a meager space to its emphasis. A county court in 1795 indicted 
the Secretary of the Northwest Territory, under a territorial law 
against usurpations, for acting as governor after Governor St. Clair 
had (though Secretary Sargent did not know that) re-entered the 
Territory; and there were citizens who wondered why nothing more 
was heard of the proceedings after their removal into the General 
Court. 102 It was not understood in the early territories that treason 
committed in the territory was not treason against the territory. Even 
those who saw that, joined in passing laws on crimes that included 
treason, although they also knew that their sole legislative power — to 
adopt laws of the original states — did not permit them to adopt laws 

Court of Michigan Territory, 1: xlix. Somewhat similar legislation (the 
law has not been accessible) had taken place before 1806 in Mississippi 
Territory — Carter, Territorial Papers, 5: 437. 

102 ibid. 2: 512, 574; 3: 456. W. H. Smith, St. Clair Papers, 2: 415-16. 
T. C. Pease, Laics of the No?-thwest Territory (I.H.C. 17), 19. The charge 
against Governor Harrison that he approved "a law requiring, under the 
penalty of five hundred dollars one of the [United States land] Commis- 
sioners ... to deliver to the Territorial Auditor a transcript of all the con- 
firmed claims in that office" (Carter, Territorial Papers, 7: 546) was a fabri- 
cation. There was no law and no resolution such as stated. There was, 
however, a law taxing claims to land — Philbrick, Laws of Indiana Territory 
{I.H.C. 21), 147, sec. 3; and another law penalizing, as stated, any "other 
person in whose possession the records and proofs of the grant and con- 
firmation of land may be" — ibid. 174. No doubt there was debate in the 
Assembly on the subject, and there can be little doubt that knowledge of the 
Commissioners' findings was desired and obtained, though the evidence is 
wholly circumstantial. See ibid, xlvii (n. 2 should have included cross 
references to the following pages), lix and n. 3, xcvi n. 4, cxvii-cxviii. 



of the United States. 1 " 3 The relation of the Constitution to the 
territories was of course not understood. Some queries were raised 
by officials as to the applicability to the territories of the Bill of 
Rights, 104 but since we are not clear today on that point, necessarily 
they were not. The relation of the territories to statutes of the United 
States was very unclear. The Ordinance of 1787 declared that the 
Northwest ' ' territory and the states . . . formed therefrom, shall for- 
ever remain a part of this Confederacy of the United States of 
America." Even in 1787 the words "a part" had two utterly dif- 
ferent meanings. The words were not changed in 1789 when the Ordi- 
nance was re-enacted. Yet on these words of a dead statute, without 
referring to the Constitution or discussing their meaning thereunder, 
two attorneys general of the United States based opinions that all 
federal statutes were applicable in the territories 105 — though Governor 
St. Clair showed he was a better lawyer in refuting them. 106 A com- 
mittee even reported to the House of Representatives the same views, 
with the additional opinion that ' ' the Court established there by Con- 
gress has from its nature & constitution the authority to execute the 
said laws" 107 — which, if true, would have solved the treason problem. 
As with reference to everything else in legislation on the territories, 
what was put into their organic acts depended on the personnel of 
the committees on territories when a territory was admitted. They 
reveal only varying practices. 108 By a law of 1801 the Northwest and 

103 See just below and post ccccxxiv; Carter, Territorial Papers, 2: 319, 

i°4 Could a territorial legislature extend the jurisdiction of a justice of 
the peace to matters involving values above $20, with no jury trial in the 
justice's court, without violating the Seventh Amendment? Jury trial being 
provided for in county courts, could appeals from a justice of the peace to 
those courts be made conditional (on giving bond to prosecute the action, 
abide by the judgment, etc.) without violating that amendment? — ibid. 
6: 251-52. The Ordinance was federal legislation that bound a territory's 
courts and legislature; did a law providing imprisonment for debt violate 
the Ordinance's prohibition of slavery or involuntary servitude? — ibid. 2: 579. 

^^ Ibid. 2: 520-21, 3: 66. Post at notecall 8 of Sec. V. 

i°6 Ibid. 2: 521, 523-24 and (a later elaboration of St. Clair's views) W. 
H. Smith, St. Clair Papers, 2: 378-83, Carter, op. cit. 3: 58. Compare Webster's 
colloquy with Calhoun in 1849 — Congressional Globe, 30 Cong. 2 Sess. App. 

107 Carter, Territorial Papers. 5: 311-12. 

108 Usually the organic acts contain nothing. In those of Orleans Terri- 
tory and Florida more than a score of federal laws were declared to be in 
force therein. A declaration that "the Constitution, and all laws of the 
United States which are not locally inapplicable, shall have the same force 



Indiana territories were included within the federal judicial system 
as a district of the Sixth Circuit of the United States; in 1802 that 
law was repealed, and cases pending in the district were continued in 
the superior courts of the territories; 109 in 1804 a federal district court 
was established in the Territory of Orleans ; 110 and by an act, already 
cited, of 1805, the superior or supreme courts of other territories (in 
which no federal district court existed) were given, in cases in which 
the United States was a party, the powers of the federal district court 
of Kentucky and a right of appeal to the Supreme Court. 111 In 1806 
Congress extended to the territories the provisions of an earlier act 
respecting compensation of jurors and attorneys in federal cases, 112 
and finally — after appointments of United States attorneys in indi- 
vidual territories 113 (with some confusion between the attorneys gen- 
eral of the latter and the federal attorneys for territories coextensive 
with judicial districts 11 *) — an act of 1813 provided for United States 
attorneys and marshals in all territories. 115 

Considered in conjunction with the failure of Congress to act, all 
this confusion — in Philadelphia and Washington as well as in the 
territories — respecting the relation of the territories to the federal 
system, political and judicial, explains perfectly well why the terri- 

and effects within the said Territory of , . . as elsewhere within the 
United States" was included in the organic acts of New Mexico, Utah, 
Nebraska, Kansas, Nevada, Colorado, Dakota, Montana, Wyoming, and 
Oklahoma. During the same period (1850-1890), the organic acts of five 
other states contained no such provision. In those of Utah and Oklahoma 
the comma after Constitution was omitted. For other illustrations of the 
matters which different chairmen thought meaningful in organic acts see 
jjost ccccxxxvii-viii, ccccxliii and mi. 

io9 Acts of Feb. 13, 1801 (sees. 4, 7)— Z7. S. Stat, at Large, 2: 90, 91; 
March 8, 1802— ibid. 132; April 29, 1802 (sec. 10)— ibid. 163. 

no Act of March 26, 1804 — i&irf. 2: 283; Carter, Territorial Papers. 
9: 208. The existence of this unique federal court in a territory explains 
why the grant of jurisdiction in the act next cited was limited to territories 
in which no federal district court existed. 

in Act of March 3, 1805— U. 8. Stat, at Large. 2: 338. 

112 Act of April 18, 1806 extending act of Feb. 28, 1799 so far as applicable 
to the act of March 3, 1805 — ibid. 

11 3 Carter, Territorial Papers, 3: index s. v. "Attorneys of U. S."; 4: 
index s. v. "Attorneys, District"; 5, 8: index s. v. "U. S. Attorney." 

H4 See Carter, Territorial Papers, 10: 350, 354, 491, 568, 570. There were 
minor instances elsewhere of confusion. The Attorney General of the North- 
west Territory sought instructions whether he should prosecute for the 
United States— letter of Nov. 20, 1796 (Ohio Stat. Lib.: St. Clair Papers, copy 
read in State Dept. ). 

us By act of April 18, 1806 cited in n. 112 and act of Feb. 27, 1813— 
U. S. Stat, at Large, 2: 806. 



torial legislatures felt so free and went so far in regulating the Gen- 
eral Court. It is unbelievable that St. Clair, Parsons, and Varnum — 
all fresh from the East, all familiar with the leaders of the govern- 
ment in Philadelphia — would have sat down in Marietta in 1788 and 
with their first four enactments set the course of all that followed, 
without prior counsel on their general objectives. As has been seen, 
virtually all that was done was not only acquiesced in, but ultimately 
adopted by Congress in its own legislation. 

In 1805 the legislature of Orleans Territory was empowered to 
establish inferior courts, and similar action was taken in the case of 
Missouri in 1812. 116 Presumably, formal action was taken in the case 
of those territories because of their alien origins; in the case of the 
Old Northwest acquiescence in legislative usurpation — if it was such — 
seemed sufficient, Mississippi Territory started with the Ordinance of 
1787 as its organic act, and with Secretary Sargent of the Northwest 
Territory as its first governor, and with the laws of the latter terri- 
tory (long the only ones available) as the model for its early legisla- 
tion ; consequently, with precisely the same judicial system. 117 Follow- 
ing, however, a wise precedent set in the Southwest Territory, various 
of its judges, if not all, were required to reside in the Territory. 118 
Perhaps by chance they resided in different "districts," which facili- 
tated circuit sessions. And following another precedent set in the 
Southwest Territory, some judges — in future cases of a similar nature, 
at least usually "additional judges" appointed for geographical rea- 
sons — were required to reside in particular districts. 119 All this made 
it more natural after some years to seek from Congress authority to 
establish independent and inferior courts, one in each district, with 
appeals from them to the territorial superior court, and this authority 
was in fact granted by Congress. 120 

us Acts of March 26, 1804— ibid. 2: 283, Carter, op. cit. 9: 205; act of 
June 4, 1812— U. S. Stat, at Large, 2: 743, Carter, op. cit. 14: 552. 

ii" Carter, Territorial Papers, 5-: 20; and compare 94 n. 15 with the titles 
of laws in T. C. Pease, Laios of the Northwest Territory (I.H.C. 17). 

us Compare Carter, op. cit. 4: 26, 48 with 5: 38, 99. 

iio/6i(Z. 5: 374, 6: 42; acts of March 27, 1804 and March 2, 1810— 
U. S. Stat, at Large, 2: 301, 563. 

I 20 By the act of March 2, 1810 cited in last note. There was, naturally, 
a choice between such a system and a pure nisi prius system, the circuit 
sessions reserving points of law for the territorial superior court in bank — 
Carter, Territorial Papers, 5: 360, 362-63, 373-74, 387, 436; 6: 150. 




Illinois, in 1812-1814, transformed its judicial system without 
asking authorization from Congress, although what it did was in sub- 
stance ratified. Immediately after organization of the Territory in 
1809, the governor and judges (June 19) repealed the section of the 
revised laws of 1807 which required yearly circuit sessions of the 
territorial judges to try issues of fact joined in the General Court. 121 
A month later they repealed sections of a law (of June 16) relating to 
the common pleas and gave to the General Court all jurisdiction, orig- 
inal and final, over all suits and process of civil or criminal nature, 
theretofore vested in the General Court, circuit courts, and common 
pleas; but made all actions and process triable in the county of ori- 
gin. 122 Further legislation relating to the Court by the governor and 
judges was confined to changes of the terms and fees. If the judicial 
system had not before been in politics such great and sudden changes 
would have put it there, and it remained a political issue substantially 
through the territorial period. 

The first elective legislature, of 1812, re-established the system of 
the revised law of 1807 save as modified. It repealed the provisions 
of that law establishing circuit courts, leaving the common pleas and 
General Court. It provided that the latter should thereafter have no 
original jurisdiction under $500, should have cognizance of errors in 
law only, and that judgments of the common pleas on appeals from 
justices of the peace should be final. 123 To one regulation by the legis- 
lature the judges of the Court already refused obedience. 124 

121 Law of June 19, 1809 — C. W. Alvord, Laws of the Territory of Illinois, 
1809-1S11 (1906), 3— post 8; repealing sec. 2 of act of Sept. 17, 1807— Phil- 
brick, Laws of Indiana Territory (I. H. C. 21), 230. This action, however, was 
an afterthought; the repealing act was supplementary to another passed 
three days earlier {post 5) which repealed certain laws and parts of laws. 

122 Except jurisdiction in causes involving less than $20 appealed from 
justices of the peace. Sees. 10, 2, 3 of act of July 20, 1S09— C. W. Alvord, 
Laws of the Territory of Illinois, 1S09-1811, 4 — post 8. The repeal, by sec. 10, 
was of sees. 1, 2 of act of June 16 — ibid. 2, post 6. 

123 Sees. 1, 7, 3, 5 of act of Dec. 25, 1812— post 75-76. The law of 1S07 
is cited ante n. 121. 

124 This same law of 1812 required each judge to prepare "a plain but 
full statement of the Case or points decided . . . with his opinion thereon" 
in writing, and file it with the clerk, who should record it — sec. 4, post 76. 
The law of Dec. 10, 1813 required this to be done by the senior judge — sec. 
15, post 102. In Pope's Digest, 1815 (I.H.C. 30), 2: 321, this section is in- 
dicated as "not in force." The law of Dec. 13, 1814 required each judge to 
give a written opinion in cases heard on appeal or under writs of error — 
sec. 16, post 140; and so it stood in Pope — ibid. 341. 



This act of 1812 was displaced by a more elaborate one a year 
later. It attempted, unsuccessfully, to enforce by a penalty the denial 
of jurisdiction under $500. 125 It repealed the provision of 1807 for 
commissioning special courts of oyer and terminer, providing instead 
for the prompt summoning of a jury by any judge of the General 
Court and for the summoning of a special term of the Court, but 
limited its jurisdiction to capital crimes. 126 The restriction -of its juris- 
diction in error to points of law was continued, 127 and proceedings in 
equity, with jurisdiction in causes exceeding $100, were elaborately 
regulated. 128 

In 1814 the legislature set to work on the yearly attempt to make 
the system satisfactory. This time the Court was renamed, becoming 
the "Supreme Court of Illinois Territory," 129 to sit in every county, 
with an unlimited original civil jurisdiction at law and in equity of 
all cases involving more than $20, and a criminal jurisdiction no longer 
limited to capital offenses. 130 The change in name — which proved to 
be not unimportant in succeeding controversy — was emphasized by a 
provision in a supplementary act that repealed so much of any prior 
law "as [gave] the style of the 'General Court' to the court [thereto- 
fore] required to be held by the supreme or superior Judges" of the 
Territory, holding by appointment of "the president and Senate of the 
United States." 131 The change in jurisdiction was similarly empha- 
sized in the supplementary act by a provision that "the Judges of the 
Supreme Court [should] perform all the duties imposed on the former 
General Court not inconsistent, with the provisions" of the act creat- 
ing the new Court and the act supplemental thereto. 132 The courts of 
common pleas, after disposing of the causes then depending in them, 
were not to have or exercise "any Jurisdiction given to the Supreme 

125 By amercing in all costs a plaintiff who should thereafter recover less 
than $500 — sec. 14 of act of Dec. 10, 1813, post 102. This section was 
also indicated by Pope as "not in force" — Philbrick, Pope's Digest, 1815 
(I.H.C. 30), 2: 321, but the repeal in 1814 of the monetary limitation was the 
reason. Under the act of Dec. 13, 1814 creating "the Supreme Court of 
Illinois Territory" appellate jurisdiction was again taken (see ante n. 122) of 
appeals involving less than $20 — sec. 2, post 137. 

126 Sees. 5-8 of same act of Dec. 10, 1813— post 99-100. 

127 Sec. 16— post 102. 

12s Sees. 17-39 — post 102-7. 

128 Sec. 1 of act of Dec. 13, 1814— post 136. 
iso Sees. 2-4 of same — post 137. 

i3i Sec. 1 of supplement act of Dec. 22, 1814— post 160. 
132 Sec. 3 of same— post 160, 



Court" ; 133 that peculiar language being used because the two acts deal- 
ing with new ' ' county courts ' ' that took the place of the common pleas 
had not yet been passed. 134 One judge might hold the Court except 
in the trial of capital crimes, for which two were required, and for 
which speedy trial was promised. 135 All suits and prosecutions for 
crime were, of course, to be tried in the counties where the causes of 
action aros£ and the crimes were committed. 136 And, of course too, 
nothing was changed by this act or those which preceded it as regarded 
federal cases in the territorial court. 

This enactment had very probably long been in contemplation by 
those who were chiefly responsible for it. 137 In the preceding May a 
committee had been appointed to call on the clerk "of the late General 
Court" — which might be regarded as a premature characterization, in 
view of the fact that the law of December 10, 1813 had left the Court 
that name — for an account of suits begun in the same during two pre- 
ceding years; and they were informed that "only one suit had been 
commenced at common law" in that period. 138 

133 Sees. 6 and 18 of act of Dec. 13, 1814— post 138, 140. 

i3i Namely, the acts of Dec. 19 concerning county courts and that of 
Dec. 24 supplemental thereto — post 149, 169. The powers and jurisdiction of 
the former courts of common pleas were simply transferred to the new 
county courts, "except such as [had] been transferred to the supreme court 
or the Judges thereof" — second act cited. 

135 Sees. 7, 8, 17 of act of Dec. 13, 1814— post 138, 140. 

i3G Sees 4, 7 of same— post 137, 138. 

i3i Whom I would take (from the Journal of the Legislative Council — 
MS in Illinois State Archives) to have been above all others William Biggs — 
see Philbrick, Laws of Indiana Territory (I.H.C. 21), ccxlix-ccl. He in- 
troduced the bill on Nov. 25 — Journal, 23; represented the Council in re- 
questing Governor Edwards' comments on the judges' objections to the bill 
— 39; and in delivering to the judges the answer of the General Assembly 
— 43; moved the printing of the documents for transmission to Congress 
— 51; introduced the supplementary bill- — 52 (ante n. 131); and represented 
the Council in the committee of two (one from each house of the Assembly) 
that drafted the memorial to Congress — 54. 

138 Journal of the Legislative Council, 54, 55. The documents herein- 
after mentioned appear in this Journal as follows: opinion of the judges, 
Dec. 7 — 73-77; answer of General Assembly to judges, Dec. 13 — 77-78; mes- 
sage of Governor Edwards to Assembly, Dec. 12 — 79-89. The first and third 
of these documents are also in the Journal of the House of Representatives 
(MS), 91-95, 95-110. Public interest is attested by the fact that they were 
printed for the Territory in a pamphlet of 45 pages (150 copies, 12 for the 
Territory's delegate in Congress); this contains the law of Dec. 13, 1814 — 
pp. 3-11; the judges' opinion — 12-20; the Assembly's answer — 21; the Gov- 
ernor's address to the Assembly — 22-41; letter of Robert Morrison, clerk of 
the General Court, to the Assembly, Dec. 20 — 42; and the memorial of the 
Assembly to Congress (actually of Dec. 21 but in this print undated) — 42-45. 
This last document is accessible in E. B. Washburne, ed., The Eflicards 



Against this enactment of 1814 (or, rather, to the bill before its 
passage) the territorial judges — having desired to express an opinion 
and the Assembly having invited them to do so — made a strong pro- 
test. 139 It would have been perhaps more logical for them to have 
taken this position against the act of 1813. In fact they bad done so, 
but the matter had been compromised and not brought before the 
public. Their first objection was to the renaming of the Court; but 
that would seem quite unimportant. 140 The second was that the bill 
contemplated courts of two grades, both of which could not be identi- 
fied with the General Court; "and an appeal from the same court to 
the same is a solecism," said they, "which we do not suppose to be 
the intention of this bill. ' ' After all, as respects the solecism, under the 
English nisi prius system (with some American analogies) the judges 
on circuit were part of the King's Bench, and their errors and in- 
justices were both controllable (though not by appeal) by the Court 

Papers (Chicago Historical Society's Collection, vol. 3, 1884), 401. There 
was also a print of 24 copies in 3 columns. And finally, Governor Edwards' 
message, with full references merely to the counterarguments of Judges 
Thomas and Sprigg, is printed in N. W. Edwards, History of Illinois, from 
1778 to 1833; and Life and Times of Ninian Edwards (1870), ch. 5. 

The text judged by Dr. Carter to be most authoritative will be printed 
by him, I assume, in volume 17 of the Territorial Papers. My own notes 
were taken years ago from the 3-column print struck off by order of the 
Assembly, and it seems useless in most cases to give any citations except to 
the Edwards biography. 

iss The law was approved on Dec. 13. None of the statutes of 1814 (or 1813) 
was printed at the time except this one of Dec. 13, 1814. See Philbrick, 
Pope's Digest, 1815 (I.H.C. 28), 1: xxi n. 3. 

140 Though the Southwest Territory had the Ordinance of 1787 as its 
organic act, the Court seems always to have been called in official corres- 
pondence (whatever may be true of its records, unknown to me) the 
"superior court" — Carter, Territorial Papers, 4: 45, 80, 83, 351, 452; and in 
Mississippi Territory at least one of the judges always wrote of it as the 
"superior" or "supreme court" — ibid. 5: 360, 373, 374; in Orleans Territory 
it was officially named "superior court" by Congress — ibid. 9: 205; in the 
Louisiana-Missouri Territory it was given no name — ibid. 13: 93, 100, 156, 490; 
and in Michigan Territory, which was a part for eighteen years of the 
Northwest or Indiana Territory, the territorial legislators promptly changed 
the name to "supreme court" in 1805 — W. W. Blume, Supreme Court of 
Michigan Territory, 5: xxiii, 1: 9. 

Governor Edwards, in his reply to the judges, pointed out that Congress 
had used the phrase "supreme or superior Judges" (see Carter, Territorial 
Papers, 2: 396), and that the laws of the Northwest Territory, Indiana and 
Illinois territories contained many references to "a Supreme Court" (which 
they did, no doubt both with and without initial capitals). He also argued 
that the Ordinance did not use "General Court" as a proper name; that as 
such the name came only from statutes of the Northwest Territory, and the 
Illinois legislature of the second grade had full power, by provision of the 
Ordinance, to alter it. 



in bank. The illogicality has always been admitted. As Governor 
Edwards said in his reply to the judges, to give a court both original 
and final jurisdiction "is neither very perfect nor very usual," but 
there were times and places when nothing else was practicable, and 
the only question presented by the legislature's action was whether it 
violated the Ordinance. The precedents for it in this country were 
on every hand. 141 

The judges' second proposition above stated was sound enough 
in fact. If, however, there was anyone in Congress who had paid any 
attention to developments in the territories he would have known that 
the bill in question represented a general tendency in the territories — 
and, indeed, a colonial tendency. Judge Sprigg, too, had served on 
the Supreme Court of Ohio, in Michigan Territory, and Orleans Terri- 
tory; Judge Thomas should certainly have had some knowledge of 
Indiana development. Governor Edwards in his comments upon the 
judges' objections recalled that in the Northwest Territory the terri- 
torial judges had been similarly required to sit in different places and 
capacities — in the General Court, in circuit courts in the counties, and 
in courts of oyer and terminer ; and Congress had provided pay for 
such duties. And so in Indiana Territory. And Judge' Thomas had 
joined, in 1809, in requiring the Illinois judges to sit in the common 
pleas — a regulation differing very seriously in character from all the 
others. The General Assembly, therefore, had not innovated. 142 

But suppose it had. Still, the Governor contended, the legislature 
might properly do so, for the Ordinance left it free to act. It pro- 
vided merely for a court with common law jurisdiction. "But how, 
when, or where, that jurisdiction is to be exercised is not pointed out, 
and therefore it is subject to the modification and direction of the 
territorial legislature"; — otherwise three judges alone must exercise 
all jurisdiction. He thought it "evident . . . that congress intended 
merely to appoint and pay the Judges, leaving it to the territorial 
legislature to adopt, or form such a Judiciary system, as they might 
conceive would be most conducive to the public interest — for if con- 
gress had intended to perfect the establishment and organization of 
the court, it is fairly to be presumed they would have been more ex- 
plicit upon the subject." 143 

i4i n. W. Edwards, History of Illinois, 33-35. 
1^2 ibid. 31-32. 
wma. 28-30. 



That being so, "Many of the states," the Governor continued, 
"had judiciary systems equally as liable to the objections of the judges 
as the one under consideration, and several of them had such as were 
very analogous to it. Could not the Governor and Judges have 
adopted any of them ? ' ' 144 And clearly what they could have adopted, 
the judges could properly execute. And now the representative legis- 
lature was even freer to choose what was best suited to the Territory. 

"The court established by the ordinance," the judges said, "can- 
not be subject to the revision or control of any tribunal established by 
the Territorial Legislature" — or by the legislature itself, they implied. 
And so, indeed, it might well seem, if one did not know that Congress, 
after renouncing to the national executive department 145 much of its 
absolute powers of supervision over the territories, had also for years 
been ignoring territorial legislative encroachments. 

"Neither are we prepared to admit," said the judges, "that the 
general court can be so localized as to be reduced entirely to a county 
court, tho' Supreme within the county." But the whole history of 
the nisi prius system contradicted, in substance though not in form, 
the implied opinion of the judges; and moreover, as already pointed 
out, Congress had already provided for territorial judges, with juris- 
diction coextensive with a territory, and yet residing in and serving 
exclusively, for years, a single district 140 — although as large, to be 
sure, as many a present state. Nor could they see (and they argued 
this point at much length) how one court could have more than one 
clerk; 147 although since to name a clerk was a power that was in- 
herent in the court as a means of best serving the Territory it seems 
jejune casuistry to deny the power to name a clerk in each county if 
so many be required by the end stated. 

144 ma. 30-31. 

145 post at cccxc seq. 

146 Ante at notecall 119. See also Blume, Supreme Court of Michigan 
Territory, 5: xxx on a Michigan instance after 1820. There were many such 

147 Governor Edwards replied at equal length — N. W. Edwards, History 
of Illinois, 36-41. According to him, members of the Assembly understood 
that the judges, despite their objections, would not refuse to execute the 
law if passed — ibid. 86; but from a letter of Jan. 2, 1815 to • — — ■ — (Nat. Arch.: 
State Dept., Territorial Papers, Illinois) it appears that they later decided 
not to do so. The act provided for appointment by the governor of the 
clerks of the Court; the judges forbore to discuss the question whether the 
right to do so was in the Court or, by a provision of the Ordinance, in the 
governor — see post cccelxvii-viii. 


There was some earlier history of these difficulties revealed by 
Governor Edwards in a letter. When the General Assembly proposed 
to establish a court of chancery in 1812, to be held by the territorial 
judges, they refused to execute it "because there was a separate clerk 
for the chancery causes, & because it was called a chancery court — 
but at the session of 1813 they proposed that if the legislature would 
vest those chancery powers in their court by the style that had before 
been given to it, that they would execute the law and perform the 
duties, which it enjoined." 148 To this the General Assembly agreed, 
the law went into effect, 119 and the difficulties ended. These past dis- 
agreements explain the tenacity with which resistance was made in 

The arguments of the judges and of Governor Edwards went 
forward to Congress together, and the result was the passage of an 
act by that body which amounted to a re-enactment, with slight al- 
terations, of the territorial law. 150 Some things were openly provided 
which in the territorial act were not said out of consideration for the 
judges ; in particular the courts to be held in the counties were openly 
"styled circuit courts for the counties," and what the original act 
called "the Supreme Court" was called in the federal act "the court 
of Appeals. ' ' As respected the clerks, the legislature 's view prevailed 
as to number — one in each countj^ ; but Congress made them appoint - 
able by the circuit courts, and another clerk of the Court of Appeals 
was provided for, appointable by it. Power was given to the legisla- 

148 Letter of Jan. 2, 1815 cited in last note. 

i*9 See the act cited ante n. 128. That act was entitled: "An Act Regu- 
lating the General Court." 

iso Act of March 3, 1815— U. 8. Stat, at Large, 3: 237. It is also printed 
in Pope's Digest, 1815 (I.H.C. 30), 2: xvii-xxii. Compare this with the terri- 
torial law of Dec. 10, 1813 — ibid. 312-33 (some sections omitted) or post 
98-108 (in full). In J. M. Palmer, The Bench and Bar of Illinois (2 vol. 
1899), 1: 10, the opinion is expressed that the arguments of the judges "were 

In A. Davidson and B. Stuve, A Complete History of Illinois from 167S 
to 1884 (1884), 288, it is stated that inasmuch as the General Assembly had 
abolished by one act the court of common pleas (acts of Dec. 19 and 24 
relative to county courts — post 149, 169), and by another act (the act of 
Dec. 22, 1814, post 160) had abolished the General Court, the Territory 
was left, "until congress . . . acted, . . . without a judicial tribunal higher 
than that of a justice's court." Now, in the first place this assumes that 
an act (the last just cited) which was supplemental to the disputed act to 
establish a Supreme Court and contained provisions dependent on that, 
could be valid while the main act was invalid. But the assumption that the 
main act was invalid is another complete mistake — see post ccccxl-xli, 



ture to alter the times of holding the courts, but "not ... to increase 
the number of sessions." And it was provided that no judge ap- 
pointed under authority of the territory should "be associated with 
the . . . United States' judges when sitting as circuit judges." 151 The 
Assembly had attempted to provide for the attendance of two judges 
in some criminal cases in the circuit courts, without positively requir- 
ing it; Congress omitted this. In both acts at least two judges were 
required to hold the highest court. 

"The real intention of the Legislature," they stated in their 
memorial to Congress, "was that each Judge should have a circuit . . . 
in whjch he should take original jurisdiction of all causes arising 
therein and that the three Judges or a majority of them should con- 
stitute a Court of appeals ... to revise and correct . . . the decisions 
of Circuit Courts and all other inferior tribunals." All this the 
federal act allowed, and in the terminology as here stated by them. 

The federal act did not state how long it should remain in force ; 
much less declare the territorial legislature competent to regulate the 
Court in the future. By a law of April 29, 1816, however, it was pro- 
vided that the former act should remain in force only until the end 
of the next territorial legislature, which thereafter should have power 
to organize as it desired the judicial system of the Territory. 152 Before 
that statute was passed two additional laws had been enacted by the 
territorial Assembly dealing with the circuit and appellate courts, 
though they contained nothing inconsistent with the federal act, and 
one contained a caveat that no construction should be put upon it 
repugnant to that act. 153 After passage of the second federal act the 

isi This practice had for years been common practice in all the territories 
of the Old Northwest in commissions for courts of oyer and terminer, and 
probably elsewhere. Examples are found in Carter, Territorial Papers, 
3: 508, 509, 529. See Philbrick, Laws of Indiana Territory (I.H.G. 21), cxlv. 
Mr. Blume reports the practice in Michigan — W. W. Blume, Supreme Court 
of Michigan Territory. 5: xx. The interchange of officers, especially judges, 
between the early territories would have been likely to spread the practice. 
The practice had been forbidden in Indiana Territory by a federal statute of 
Feb. 24, 1815— U. 8. Stat, at Large, 3: 213. It was doubtless a common prac- 
tice in many states, being obviously desirable in order to give guidance and 
authority to local tribunals. So, for example, in New York, New Jersey, and 
Pennsylvania — R. Pound, Organization of Courts, 144-45. 

15214 Cong. 1 Sess. ch. cliv, U. 8. Stat, at Large, 3: 327. 

153 Law of Jan. 9, 1816, "Explaining the Jurisdiction of the Circuit 
Courts" — post 203; and the other, of the same date, "Concerning the Court of 
Appeals for Illinois Territory and the several circuit courts" — post 207. 



Assembly again made its annual revision, 154 and did increase the num- 
ber of sessions on circuit required annually of the judges. 155 

The act passed by Congress for reorganization of the Illinois 
judiciary marked a stage in the history of territorial courts. On the 
same day that the Illinois legislature was authorized to regulate inde- 
pendently the judicial system of the Territory 

the general assembly of Missouri was ordered [authorized] to estab- 
lish a system of circuit and appellate courts similar to that of Illi- 
nois. 156 In Missouri and also in Indiana the superior [territorial] 
judges were given chancery powers in all civil cases. 157 When the 
Territory of Alabama was cut off from Mississippi and Arkansas from 
Missouri in each case the judiciary was organized on the principles 

established in 1815 for Illinois. 158 From this time on the legislation 
of Congress was either direct, and based on these general principles, 
or gave free hand to legislation by the territorial legislatures. The 
whole incident suggests that federal legislation would have been in- 
finitely less haphazard from the beginning if there had been any means 
of centering attention of Congress on territorial problems. 

is* Act of Jan. 6, 1817, "regulating and denning the duties of the United 
States' Judges for the Territory of Illinois" — post 256; and act of Jan. 
10 supplemental to the preceding — post 263. 

155 Both the acts of 1816 cited ante n. 153 and the present acts con- 
tained some matter that was in the law of Dec. 10, 1814 and not included 
in the federal act of March 3, 1815. This seems unimportant. New clerks 
of all circuits and of the court of appeals were appointable under this*- new 
act of 1817, and no changes were made in the clerks' powers or duties. 
Perhaps these appointments had some special significance — possibily political. 

ise By act of April 29, 1816—14 Cong. 1 Sess. ch. civ, U. S. Stat, at Large, 
3: 328. The lower jurisdictional limit for the circuit courts was different 
in two cases — over $100 in Missouri, over $20 in Illinois. 

1.-.7 The Indiana "superior" court (General Court) only, by sec. 6 of act 
cited ante n. 152; both "superior" and "circuit" courts in Missouri by sec. 
3 of act cited ante n. 156. 

158 m. Farrand, Legislation for the Territories, 29. The quotation is 
introduced primarily for the purpose of paying tribute to the admirable 
character of Dr. Farrand's thesis. He gives only dates of statutes, but with 
very rare exceptions the date is enough to lead one quickly to the statute. 
(In at least one case one must search through nearly two hundred pages of 
legislation, but this shows how thorough was Dr. Farrand's reading.) By sec. 
5 of the organic act of March 2, 1819 for Arkansas the governor and judges 
were given "power to pass any law for the administration of justice in said ter- 
ritory, which shall not be repugnant to this act or inconsistent with the con- 
stitution" — U. S3. Stat, at Large, 3: 494. The first stage of government was 
to end whenever the governor should be satisfied that such was the desire 
of a majority of the freeholders, and thereafter the elective legislature was 
to have "all the legislative power of the territory" — hence the above (sec. 
6, p. 494). Alabama had been given outright by act of April 20, 1818 — 
sec. 3, U. S. Stat, at Large, 3: 372 — essentially the Illinois system. 





The tradition lias been strong in our history that a territory 
should not — perhaps cannot — be held as such under permanent con- 
trol of Congress, but should be admitted both certainly and soon into 
the Union as a state. Up to the present day, too, our practice has 
conformed to this tradition, with the notable qualification that the 
admission of some territories has been far from prompt. The tradi- 
tion undoubtedly sprang from our colonial experience, but it has never 
had any legal basis, since it was given no recognition in the Articles 
of Confederation or in the Constitution. 

Even the acquisition of territory by the federal Union was not 
mentioned in either document, although implied powers ample for 
the acquisition of foreign territory are readily found in the Constitu- 
tion. Domestic lands of vast extent were acquired by the Confedera- 
tion ; indeed, its legal establishment was made possible only by the 
certainty of their acquisition. Whether they were acquired under a 
power given Congress by implied amendment of the Articles or by 
mere usurpation of power will be discussed below. 

Nor was there in the Articles any mention of the government of 
settlers in territories acquired. Governments were nevertheless es- 
tablished by the Confederation over the settlers on the lands it ac- 
quired; yet the word "territories," in a technical political sense, is 
also not to be found in the Articles. 

It is also true that the disposal of the Confederation lands and 
the government of settlers thereon were vitally involved in the crea- 
tion of the present Union. Yet in the Constitution, also, the word 
' ' territories ' ' does not occur ; the sole reference to ' ' territory ' ' is seem- 
ingly made to it merely as ' ' property ' ' of the United States. Perhaps 
the power to "make all needful rules and regulations respecting the 
territory or other property of the United States" was not intended 
as a grant of power to govern settlers in territories. If so intended, 
perhaps it was intended as such only as respected territories already 
acquired ; perhaps it was intended to give power, also, to govern those 



in territory later to be acquired. These matters will be discussed be- 
low, and the latter interpretation supported. 

In consequence of these facts and obscurities the fundamental 
characteristics of the relation between Union and territories have been 
matters of growth, and therefore their origins have been disputable 
and their precise nature at any given time has been uncertain. Xo 
one who reads the proceedings of the old Congress, or even the mere 
text of the Ordinance of 1787, can fail to note the vague use therein 
of the words "territories" and "states." No one can read the Con- 
stitution without noting the equally vague employment therein of the 
latter word 1 and the complete absence of the former. 

The foregoing matters underlie two fundamental questions relat- 
ing to our governmental system. Both of them are implicit in the 
brief constitutional provision that "new states may be admitted by 
the Congress" into the Union. 

The first question is: Did (or does) the "may" imply a dis- 
cretion to refuse to an organized political community, within the 
Union's domains and governed by it (under the title of territory, 
state, or any other name), for an indefinitely long time or even alto- 
gether the statehood which attaches to membership in the Union ? 

The second question is : What is the meaning of the word 
"states" in the constitutional provision just quoted? Clearly a state 
(using that word in the sense of political science, as a people politi- 
cally organized) may exist outside the Union. By the Declaration of 

i "In the Constitution the term state most frequently expresses the 
combined idea ... of people, territory, and government. A state, in the 
ordinary sense of the Constitution, is a political community of free citizens, 
occupying a territory of defined boundaries, and organized under a govern- 
ment sanctioned and limited by a written constitution, and established by the 
consent of the governed. It is the union of such states, under a common 
constitution, which forms the distinct and greater political unit, which that 
Constitution designates as the United States. . . . But it is also used in 
its geographical sense, as, in the clauses which require that a representative 
in Congress shall be an inhabitant of the State in which he shall be chosen, 
and that the trial of crimes shall be held within the State where committed. 
And there are instances in which the principal sense of the word seems to 
be that ... of a people or community, as distinguished from a government. 
In this latter sense the word seems to be used in the clause which provides 
that the United States shall guarantee to every State in the Union a re- 
publican form of government, and shall protect each of them against invasion" 
—Texas v. White (1868), 73 U. S. 700, 721. See post n. 37 of Sec. III. 



Independence the united colonies declared themselves to be free and 
independent states ; and such, in the sense stated, they of course were 
thenceforth. Later, Maryland remained outside the nominal Con- 
federation until her accession gave it legal status ; Vermont remained 
thereafter outside both the Confederation and the present Union ; and 
Virginia, New York, North Carolina, and Rhode Island remained for 
lesser times outside the present Union from its establishment, by rati- 
fication of the Constitution by nine states, until their respective rati- 
fications during a period of twenty-three months thereafter. Such 
states might be, as they were, admitted — although the existence of 
constitutional authority to admit a "foreign" state was denied by 
John Quincy Adams and others when Texas was annexed. But such 
a state would by admission become a state in a new and special sense 
defined by the attributes which the Constitution assigns to it as a 
member of the federal system. 

In view of these facts another question arises. Congress having 
provided a substantially invariant territorial system, as respected the 
relations between territory and Union and admission to the latter as 
a Union-state, to what extent has it been recognized as politically per- 
missible for a territorial population, independently of congressional 
action, to organize itself as a "state" in a sense implying some rela- 
tion to the Union intermediate between the status of a territory and 
that of a Union-state? In view of the complete authority vested in 
Congress, this question necessarily involves no question of right but 
merely the political discretion of Congress. For a long time, how- 
ever, it was involved with theories of natural right or "squatter 
sovereignty. ' ' 

None of the above questions can be positively answered, either 
as matters of law or of political theory. It is self-evident that they 
are primarily not legal, but questions of political life ; of tradition on 
one hand and of the forces shaping national development on the other. 
They are questions to which the Supreme Court will certainly never, 
unless under necessity, attempt to give an answer ; and to which there 
can never by possibility be political answers other than those indi- 
cated by the actions of successive Congresses, Not, then, with the 
idea of seeking answers to them that have any supposed theoretical 
finality, but for other reasons, it seems worthwhile to devote some at- 
tention to them. 



A main reason is that they have underlain the territorial growth 
of the country in the sense that answers to them have necessarily 
been implicit in the acts by which that growth was effected, even 
though one might hesitate to say that answers consciously or un- 
consciously given to them motivated or determined those acts. Never- 
theless, these rather abstract questions will be considered only briefly, 
and after full discussion of other questions of less abstract character. 

In particular, these concrete questions may be asked. (1) Why 
did the Articles of Confederation make no reference to the acquisi- 
tion of territory, government of settlers therein, and admission of new 
states; and (2) did the Confederation nevertheless acquire power to 
do these things? (3) Why did the Constitution explicitly provide 
merely that Congress "may" admit new states; and only vaguely 
for territorial government; and only by implication, if at all (and it 
is thought not at all), for the acquisition of domestic territory? 

The answers to even these relatively narrow questions, capable 
of examination through ponderable evidence, can only be found in 
the history of the Confederation era, and in it only as tentative in- 
ferences. An attempt will be made to answer them as definitely as 
the sources of the time permit, after which recurrence will be made 
briefly to the more abstract questions above stated, any thorough dis- 
cussion of the latter being irrelevant to the history of the Old North- 


The almost complete absence of reference, in both the Articles 
of Confederation and the Constitution, to the acquisition of foreign 
territory is very easily understood. The provision in the Articles 
of Confederation for the admission of Quebec, 2 even assuming that 
completely voluntary action on her part was not envisaged, 3 was 
excusable as incidental to an existing war with the suzerain of that 
province ; but any similar provision in the peacetime Constitution of a 
Union of erstwhile rebellious colonies would have been an international 
impropriety, an irritating threat added to the challenge which the 
mere existence of our republic offered to European monarchies. 

As respects the absence in both instruments of references to the 

Art. 9. 

But see J. H. Smith, Our Struggle for the Fourteenth Colony (1907). 



acquisition of domestic lands — that is, within the boundaries of in- 
dividual colonies — explanations can be given which are both brief 
and seemingly simple. One can say that in law the individual states 
were colonies until they should attain independence, and therefore 
should not be conceded, retrospectively, to have owned the lands in 
question; at least, and particularly, after the Crown had asserted its 
paramount control over all those lands, without reference to indi- 
vidual colonial limits, by its proclamation of 1763. And one can 
then add that since the "United States" referred to in the Articles 
were not a political entity, but merely the states united in the enter- 
prise of winning independence for the states severally, there could 
have been no thought of acquisition by them collectively of lands 
within their individual limits. 

The difficulty with the above statements, however, is that each is 
contradictory of notorious facts. It is a fact, namely, that all the 
colonies did claim individual legal ownership of lands within their 
limits. Free grants of such land had been used both to attract im- 
migration from and to check emigration to other colonies. 4 The 
boundaries of some colonies were limited and precise ; those of others 
involved conflicts, or ran vaguely to the Mississippi or even to the 
South Sea. It was the claims of these colonies that almost prevented 
union under the Confederation. Virginia had made great disburse- 
ments, some of them assented to by the King, for defense of territory 
west of the Alleghenies ; had organized counties there and held courts 
therein; had granted lands there to her troops and to others; had 
passed in 1753 for encouragement of settlement on the Mississippi an 
act which was assented to by the Crown. 5 One of Maryland's rather 

4 H. Tatter, "State and Federal Land Policy during the Confederation 
Period" (1935), Agricultural History, 9: 176, 180; also "Preferential Treat- 
ment of the Actual Settler ... to 1841" in Summaries of Ph.D. Disserta- 
tions, 1933. 

5 June, 1779 — Journals of the Continental Congress, 1774-1789, 23: 505-6. 
These facts are chosen to illustrate Virginia's claim because they were those 
chosen by the committee which assembled "facts and observations" for con- 
sideration by our envoys to the peace conference. Virginia created in 1738 
Augusta County, west of the Alleghenies and bounded on the north and west 
by "the utmost limits of Virginia" — W. W. Hening, Statutes, 5: 79. The 
County of Illinois was only a bit of this vast region, from Dec. 1778 to Jan. 
1782— see A. C. Boggess, The Settlement of Illinois, 1778-1830 (1908), 9, 
for citations. Many details of Virginia's vast land grants in the West are 
given in T. P. Abernethy, Three Virginia Frontiers (1940), 57, 65, 67. Fol- 
lowing 1763 schemes were considered by the British government for creating 



effective weapons in her duel with Virginia to secure for the benefit 
of all the states the latter 's western territories was the charge that a 
sale of these at low prices would depopulate and impoverish the states 
lacking similar lands. 6 

On the other hand it is a fact that there was thought of collective 
disposal of the lands, at least from the moment that Silas Deane first 
suggested in 1776 that they should be used to pay the costs of the war 
for independence. 7 That was two years before the Articles of Con- 
federation were even written. Moreover, the idea that the states col- 
lectively had the right so to dispose of the lands very soon became 
common and significant. As a matter of justice it was based on the 
argument that title should be recognized as in — or should be ceded 
to — the states collectively because only by their united efforts could 
independence be won. It was based, technically (at first and most 
reasonably), on the theory that legal title was in the Crown, at least 
after 1763, and would necessarily pass by the treaty of peace to the 
collective colonies who would be a party to it. As a matter of fact, 
even while title to the lands, in Crown or colonies, was unestablished 
against France, the Crown had asserted paramount dominion ; for 
example in ordering certain grants to be made by Virginia 's governor 
of western lands "within his Majesty's colony of Virginia." 8 The 
instructions prepared for our representatives in negotiating peace in 
1783 did not challenge the Crown's right, even if title were in the 
individual colonies, to terminate or shift it by "dismemberment" of 
colonies ; 9 and though the British cabinet had merely considered plans 
for new western colonies, or for the sale of great tracts to private com- 
panies, 10 these did illustrate its paramount claims. Finally, the lands 
were within the boundaries of the cession by France in 1763 to Great 
Britain; which thereafter, as already stated, dealt with them as a 

colonies filling the whole region west and northwest of the Alleghenies, and 
Virginia, at least as to some, made no protest — see G. E. Howard, Preliminar- 
ies of the Revolution (1905), 233. 

e May 20, 1779— Jour. Cont. Cong. 23: 505-6. 

7 Dec. 1, 1776 — American Archives, Fifth Series, 3: 1020-21, 1051. Con- 
gress had in fact offered land bounties to soldiers in August and September 
of the same year — as noted in J. A. Barrett, The Evolution of the Ordinance 
of 1787, with an Account of the Earlier Plans for the Government of the 
Northwest Territory (1891), 4 n. 1. 

sjour. Cont. Cong. 23: 505. 

o Ibid. 

io See post n. 267. 



whole as regarded Indian rights and prohibition of settlement by 
whites therein. 11 

But, admitting all this, the question would still remain : Was the 
western country ceded to the states severally or collectively? The 
treaty of peace sometimes referred to them as constituting together 
one party, and — for the purpose of making peace in a general sense — 
such, of course, they were. On the other hand the treaty recognized 
their independence individually, and in other language spoke of them 
in a manner consistent with their being several, though allied, op- 
ponents. Not much, if anything, therefore, can be learned from the 
treaty. And beyond such frail arguments lay the facts that Virginia, 
in particular, not only had claimed rights in the Northwest as a colony, 
but during the war had individually conquered, and in a feeble way 
governed, a part of it. 

In the official papers of the Confederation the theory of colony 
title— or at least state title — was naturally and particularly favored. 
Naturally, because the growth of continental sentiment was necessarily 
slow; and particularly because collective ownership was a theory that 
could not be favored in an assemblage of state delegates. Among 
them, the fact of Virginia's actual occupation of part of the West, 
although hostile to the claims of the other landed states in the matter 
of extent, gave support to them in matter of legal theory; and this 
group of states long controlled the collective expressions of Congress. 
Edmund Randolph, for example, compiled the "Facts and Observa- 
tions" for consideration by our peace commissioners that were sub- 

11 The committee argument prepared for our peace commissioners em- 
phasized state claims — post n. 73. They remarked of the alleged abridgment 
of colonial boundaries by the Quebec Act (1774): "But the provision, that 
nothing contained therein should in any wise affect the boundaries of any 
other colony, destroys its operation" — Jour. Cont. Cong. 23: 511. The ques- 
tion of boundary was not, however, identical with the question of title, in 
which we are here interested; the argument conceded by implication that 
Britain might have altered boundaries and area of colonies. The committee 
also denied the right of the Crown to abridge Virginia's right — ibid. 510; 
but if title had always been in the Crown there was no such abridgment. 
See also ibid. 495. Max Farrand stated the argument as being that "the 
Proclamation . . . had changed this western territory into 'Crown Lands' " — 
The Fathers of the Constitution (1921), 57. So long as Virginia was a 
colony it would seem that legal argument either way — that title was always 
in the Crown, or was in 1763 resumed by the Crown — supported the view 
that title passed from it; but to whom? Dr. Jameson adopted the view that 
"all the vast domains of the Crown fell into the hands of the states," 
severally — J. F. Jameson, The American Revolution Considered as a Social 
Movement (1926), 49. 



mittecl to Congress in August 1782, and which were founded on the 
theory of state title. 12 Madison, for an earlier example, in drafting 
instructions to Jay in October 1780, simply assumed the theory that 
British title devolved on the states severally ; 13 it was not, to be sure, a 
point that could be argued with France or Spain. Yet this report 
was approved only one week later than a day which is one of the 
greatest in the history of American nationalism — October 10, 1780 ; 
the day on which Congress committed the Confederation, morally, to 
a national colonial policy in the West — and Madison had seconded the 
motion that led to that momentous step. 14 When a petition from 
Kentucky inhabitants who alleged prior allegiance to "the United 
States" was presented in August 1782 to Congress — instead of to 
Virginia's legislature — a great debate in Congress showed how 
strongly the tide was running in favor of continental unity. 15 

12 This report was preceded by one of Madison (Jour. Cont. Cong. 23: 
481 n. 1) which discussed the proclamation of 1763, the treaty of New York 
in 1768 with the Six Nations, and the Quebec Act of 1774 — ibid. 473-76. 
This was referred to another committee, the report of which was prepared 
by Randolph — ibid. 521 n. In reading the report it is essential to bear in 
mind facts pointed out post at notecall 73. It discusses the above points at 
495, 507-11. Succession to colonial titles by the states severally is discussed 
at 511-16; by the united states collectively, at 516-17. 

In recognizing as alternative the claims that title was in the states in- 
dividually or collectively they gave precedence of order to the former, and 
the argument for collective title is brief and weak. On the legal points, the 
Committee said that they did not attempt to prove that Virginia, North 
Carolina, and South Carolina were "lawful successors to the rights of the 
proprietors," but did "assume" that the colonial governments had neces- 
sarily exercised "jurisdiction" over the western lands "even if the pro- 
prietors had a right to throw them off from that jurisdiction." This latter, 
they also assumed, could only be effected by "dismemberment" of a colony, 
and they denied any right of the proprietors to "dismember" a colony with- 
out consent of its "people" — Jour. Cont. Cong. 23: 498. No change of boun- 
dary or division of a colony ever having been attempted, this last opinion 
was both political and of scant significance. 

The report was recommitted — ibid. 524 n. 1; and no further proceedings 
on it are indicated; but it seems to have been adopted — ibid. 485 n. 2. 

1 3 Ibid. 18: 935-47, especially at 939-40. This report was also recommitted. 

n The declaration of Oct. 10 was a resolve of Congress that any "unappro- 
priated lands . . . ceded or relinquished to the United States, by any par- 
ticular states . . . shall 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" — ibid. 
915. On Madison's motion compare post at notecall 53. 

is These debates are to be found in the Thomson Papers, New York 
Historical Society Collections, 1878, at 145-50; they are also quoted liberally 
by President Welling — J. C. Welling, "The States'-Rights Conflict over the 
Public Lands," (1888) American Historical Association Papers, 3: 419-22. 
The debate had begun on Aug. 16, on a motion by Bland, of Virginia, to 



Theory aside, facts had in the beginning favored Virginia ; theory 
aside, they were coming more and more — in the form, to be sure, of a 
growing continental sentiment — to favor the theory of collective title. 

Back of these disputes lay, of course, economic interests. As the 
Revolution progressed all the states became debt burdened and great 
obligations were contracted by the Confederation ; the rivalry be- 
tween the old practice of free grants and the later practice of sales 
for revenue was clearly ending in favor of the latter, which had made 
rapid headway in the decades just preceding the Revolution ; 16 and in 
consequence of these facts the control of the land of Virginia and other 
states with great western claims — the questions, who should control 
them and for what purpose — became the most momentous problem of 
the Confederation era. 17 Not having been solved, however, when the 
Articles of Confederation were drafted, its immense economic impor- 
tance and divisive political potentialities precluded reference to it 
therein ; and the absence of settlement speedily appeared as the great- 
est obstacle to the adoption of the Articles and legal establishment of 
the Confederation. The states of definitely limited boundaries — the 
"little" or "landless" states — supported the claim of the Confedera- 
tion to the transmontane territories claimed by the "landed" states. 
Thus arose a conflict between the big and little states which runs 
through the records of the Continental Congress and which forced 
the most vital compromises of the Federal Convention. It will be 
found, too, that it was the violence of these differences that prevented 
explicit reference in the Constitution to the acquisition and govern- 
ment of territories. 

Various historians — recently and notably Mr. Jensen — have told 
in detail the story of the relation between the problem of western 

expunge the Question, stated by the committee, of possible title in the states 
collectively (see post n. 73) — and so, also, its subsequent brief discussion, 
ibid. 141-45. To avoid arguing the whole of what was compiled merely as 
information, not as instructions, the report was committed. Its later fate 
does not appear. 

is Tatter, ante n. 4 (first item). "The principle of public vendue as 
opposed to private sale arose from the practice in New England and New 
York (Conn. Col. Recs., VIII, 134-137; N. Y. LAWS, 1792, Greenleaf ed., II, 
334). British royal instructions of 1774 to Governor Tryon of New York are 
similar (Docs. rel. Col. Hist. State N. Y., VIII, 410-412)"— C. B. Carter, ed., 
The Territorial Papers of the United States (1934— — ), 2: 15 n. 32. 

1 7 The important literature is cited in M. Jensen, The Articles of Con- 
federation (1940), particularly ch. 6, 10, 11. In the following pages nothing 
else is cited, with few exceptions, than primary sources. 



land claims and the ratification of the Articles. Reference to the mat- 
ter will here be confined to the question of the legality or illegality of 
the actions of Congress in acquiring territory, organizing governments 
therein, and providing for the admission of new states. It is impos- 
sible to deal with this question without restating many facts that are 
familiar to students of the Confederation era. Their restatement with 
reference to the specific inquiry here propounded emphasizes the 
order of their occurrence and throws light upon the significance of 
that order. 

The question stated has more novelty to non-lawyers than to 
lawyers ; for the law, in various situations in which justice so demands, 
is accustomed to make many acts legally effective by a bald fiction of 
"relation back," or by blandly reciting as a "reason" the mere re- 
sult — ut res magis valeat quam pereat. 18 And it might be thought 
that that view would be sensible and sufficient in cases involving the 
acts of governments, where public policy is most plainly present. From 
that point of view, there is nothing "practical" in an inquiry into the 
"legality" of the acts of the old Congress, either as respects all its 
acts preceding the de jure establishment of the Confederation, or as 
respects solely its acts with reference to the western land claims of 
the states both before and after the Confederation's legal establish- 
ment. These seeming legal analogies will be found, however, to give 
no aid in the present inquiry. 

Nor is it one of useless antiquarianism. The effect of the actions 
of the old Congress upon ratification by the states of the Articles of 
Confederation is an old story. Wholly different, however, are the 
two questions : ( 1 ) Were the defects of the Articles cured by an 
amendment implicit in the actions and the ratifications just referred 
to? and, (2) What relation is there between the answer to the preced- 
ing question and the phraseology of the present Constitution? It is 
to these questions that the present discussion is addressed. On some 
of the details which it involves variant views have been expressed by 
the Supreme Court, and views that are by no means historically ac- 

The Dickinson draft of the Articles gave to Congress the powers 
of limiting the boundaries of states extending to the "South Sea, and 
ascertaining those . . . that appear to be indeterminate"; of "assigning 

is See post n. 101. 



Territories for new Colonies, either in lands to be thus separated 
from Colonies" or theretofore or thereafter purchased from the In- 
dians ; of " disposing of all such Lands for the general Benefit of all 
the United Colonies"; and of "Ascertaining Boundaries to such new 
Colonies, within which Forms of Government are to be established on 
the Principles of Liberty." Irreconcilable opinions in the committee 
from which the draft proceeded were presumably indicated by the 
note appended to these provisions: "These clauses are submitted to 
Congress." 19 When a second draft was agreed upon after two months 
of debate all the above provisions were omitted, 20 and in their place 
it was finally provided "that no state shall be deprived of territory 
for the benefit of the United States." 21 This was a victory of the 
"landed" states. Late in the debate, Maryland — continuing efforts 
steadily pursued throughout 1776, and with some support gained from 
other states — forced votes (October 1777) on two amendments. One 
would have conferred the power to fix state boundaries, joined with 
a provision for the organization of territory beyond the limits so 
fixed into "separate and independent states." Both were rejected. 22 
The result was to remove contention from Congress to the legislatures 
of the several states when the Articles were submitted to them in final 
form in November 1777. A year later (December 1778) Maryland 
adopted a "declaration" that she would ratify only if the landed 
states should agree that their western lands should be "considered as 
a common property." 23 

is Art. 18, Jour: Cont. Cong. 5: 550-51, and compare 682. Arts. 14 and 
15 were ancillary to the provisions of Art. 18. Art. 14 empowered Congress 
to ascertain the limits of Indian territorial claims, and provided that pur- 
chases from the Indians should be made solely by the United States for their 
common benefit. Art. 15 provided that "when" the boundaries of any state 
("colony") should have been ascertained, then its "jurisdiction" therein 
should be guaranteed by all the other states. To each of these two Articles 
there was appended the note: "This Article is submitted to Congress" — 
ibid. 549. 

?o The original and the revised draft (agreed to on Aug. 20, 1776) are 
printed in parallel columns in ibid. 5: 674-89. 

si The final draft of March 1, 1781 — ibid. 19: 218. It was also provided 
in the same that Congress should manage "all affairs, with the Indians, not 
members of any of the states, provided that the legislative right of any state 
within its own limits be not infringed or violated." — ibid. 219. On "legis- 
lative right" compare post following notecall 76. 

22 Oct. 15, 1111— Jour. Cont. Cong. 9: 807. On the efforts of the Mary- 
land delegates during 1776 see ibid. 5: 505 n. and 6: 946 n., 978 n. 

23 Dec. 15, 1778 — Hening, Statutes. 10: 549. This "declaration" was read 
in Congress on Jan. 6, 1779 — Jour. Cont. Cong". 13: 29 — although not there 



During the interval between these two manifestations of her in- 
transigence, "ratification" had proceeded, in an obscure and dis- 
ordered manner. Ten states had by April 1778 instructed their dele- 
gates to ratify, but their powers, however widely they may have been 
known to fellow members of Congress, were not officially laid before 
that body until June, when it appeared that five were in form un- 
conditional 24 and one other substantially so. 23 However, the delegates 
of two states holding powers formally unconditional submitted twenty- 
five amendments, 2 " and four states whose delegates were only con- 
ditionally authorized to ratify moved eleven other amendments. 27 
None of all these amendments involved the western lands save one 
of Rhode Island's. That, in language somewhat indefinite, demanded 
recognition that they were held bv collective title. 28 Of the three states 

printed. The accompanying "instructions" were read in Congress on May 
21, 1779 and are there printed — ibid. 14: 619-22. Both are in Hening. 

24 Those, namely, of Virginia, Dec. 15, 1777 (misdated 1778) — Jour. Cont. 
Gong. 11: 669; South Carolina, Feb. 4-5, 1778— ibid. 670; New Hampshire, 
March 4, 1778 — ibid. 662; Pennsylvania, March 5, 1778 — ' ibid. 669; North 
Carolina, April 25, 1778— ibid. 669. 

25 New York. In her powers of Feb. 16, 1778 was the recital, "be it 
enacted . . . that the said . . . Articles . . , are hereby, fully accepted, re- 
ceived and approved of"; and her delegates were empowered to ratify, 
"provided . . . that nothing in this Act, or the said Articles . . . shall . . . 
bind or oblige . . . this State, until the said . . . Articles have been duly 
ratified ... by ... all the said United States, in Congress Assembled." 
Ibid. 11: 665-67. This proviso manifestly applied to every state, whether 
expressly stated by it or not, as regards both the Articles and the state's in- 
dividual legislative action. 

26 South Caroline proposed twenty-one — ibid. 11: 652-56; Pennsylvania, 
four — ibid. 652. The unrepresented state was North Carolina. 

27 Connecticut, on Feb. 12, 1778, empowered its delegates "to ratify . . . 
with such Amendments, if any, as by them, in conjunction with the Dele- 
gates of the other States in Congress, shall be thought proper," and proposed 
two amendments — ibid. 11: 665, 639. Rhode Island, on Feb. 18, 1778, author- 
ized ratification "provided the same be acceded to by eight of the other 
States," and to join in any amendments supported by nine others, and herself 
proposed three — ibid. 663-65, 638-39. Georgia, on Feb. 26, 1778, authorized 
ratification of the submitted Articles "or any other plan of a general Con- 
federation which shall be agreed upon by nine of the United States," herself 
proposing three amendments but empowering her delegates to ratify whether 
"all or none" of these should be adopted; but her delegates reported to Con- 
gress, on the day when report of instructions was asked for in that body 
(June 22), that they were without instructions, her amendments, therefore, 
not being actually moved — ibid. 670, 656. Massachusetts, on March 10, 1778, 
ordered ratification of the Articles as they were "unless the following altera- 
tions, or such as may be proposed by the other States, can be received and 
adopted without endangering the Union proposed," her own suggested altera- 
tions being three in number — ibid. 663, 638. 

2s Her third proposed amendment was to add to the provision of Dickin- 
son's Art. 18 quoted ante preceding notecall 19, these words: "provided never- 



that had not yet given any powers to their delegates — all strongly 
committed to restriction of western claims — one was unrepresented in 
Congress, but the delegates of the other two, New Jersey and Mary- 
land, presented instructions on that subject. 20 Their restrained 
phraseology could not, in view of the past, have been regarded as 
qualifying the militancy of those states. The virtual certainty that 
the unanimous ratification required for de jure establishment of the 
Confederation could never be* obtained without amendment of the 
Articles was necessarily apparent to all. 

Such being the situation as regarded actual powers and demands 
for amendment, the action of Congress is illuminating. In the first 
place, no direct and express amendment of the Articles was per- 
mitted ; for though many of the suggested amendments involved mat- 

theless, that all lands within these states, the property of which, before the 
present war, was vested in the crown of Great Britain, or out of which 
revenues of quitrents arise, payable to the said crown, shall be deemed, 
taken and considered as the property of these United States, and be disposed 
of and appropriated by Congress for the benefit of the whole confederacy, 
reserving, however, to the states, within whose limits such crown lands may 
be, the entire and complete jurisdiction thereof." Ibid. 11: 639. 

With this compare his suggested Arts. 14 and 15 stated ante n. 19, and 
the quotation from New Jersey's proposed amendment in the next note below. 
The position of Rhode Island and New Jersey was equivalent to Maryland's 
demand for nationalization of lands "Avestward of the frontiers of the United 
States, the property of which was not vested in individuals at the commence- 
ment of the present war" — resolution referred to ante at notecall 22, recited 
in the later "declaration" cited ante n. 23. 

29 Maryland's instructions (Dec. 15, 1778) are cited ante at notecall 23. 
In New Jersey's "representation" of June 1778 (1) she insisted that state 
boundaries should either be at once "finally fixed" or the "principles" be at 
once established on which they should be fixed "at an early period, not 
exceeding five years from the final ratification of the confederation." (2) 
She emphasized that, the war being "for the general defence," expectations 
had been that the "benefits" of victory should be general, "and that the 
property of the common enemy . . , would belong to the United States. . . . 
We are therefore greatly disappointed in finding no provision . . . empower- 
ing the Congress to dispose of such property, but especially the vacant and 
unpatented lands, . . . for public and general purposes. The jurisdiction ought 
in every instance to belong to the respective states within . . . which such 
lands may be seated; but . . . the property which existed in the crown . . . 
ought now to belong . . ., in trust for the . . . use and benefit of the United 
States." When, then, in Art. 9 of the Articles it is declared that "no state 
shall be deprived of territory for the benefit of the united states," does this 
refer to "any lands, the property of which was heretofore vested in the 
crown of Great Britain; or [are we to understand] that no mention of such 
lands is made in the [Articles of] confederation?" — ibid. 11: 649-50, para- 
graphs 5-6. 

"Seated" lands are, technically, those in possession (seisin) — presumably, 
therefore, of individual proprietors. 



ters of form that had obvious merit it was evident that a discussion 
of at least near two-score proposals would be so prolonged as might 
render impossible establishment of the Union. Various of the states, 
in the instructions to their delegates, emphasized such establishment 
as the primary immediate necessity; moreover, it was necessary to 
give heed in Congress to the demands of the strong party 30 who had 
sought to secure union before any declaration of independence and 
now, after that, wanted action as speedily as possible. After a motion 
to empower Congress to fix the western limits of states claiming to 
the Mississippi or the "South Sea" 31 was defeated by a narrow margin 
in June 1778, a fortn of ratification, professedly absolute, was signed 
for eight states — New Hampshire, Massachusetts, Rhode Island, Con- 
necticut, New York, Pennsylvania, Virginia, and South Carolina — on 
July 9. But the Articles themselves were not signed on that clay by 
any of these eight states, so far as can be known from their official 
copy; and were certainly signed by some on very different dates. 32 

The distinction seems to be one of great importance. The signing 
of the "form" seems to have been one only "in principle." To have 
signed the Articles would clearly have exceeded the powers of Rhode 
Island's delegates; 33 and signature by those of Massachusetts could 
have been reconciled with their powers only by assuming (doubtless 

so See ch. 3 and 4 of Mr. Jensen's book, ante n. 17. 

31 On June 23, 1778 the vote on Maryland's motion so to empower Con- 
gress (a renewal of the motion rejected on Oct. 15, 1777 referred to ante 
n. 22) was six (New Hampshire, Connecticut, Massachusetts, Virginia, South 
Carolina, and Georgia) to five (Rhode Island, New Jersey, Pennsylvania. 
Delaware, Maryland) with New York divided. Jour. Cont. Cong. 11: 631-32 
(motion), 636-37. 

32 On June 25, 1778 a committee was appointed "to prepare the form of 
a ratification"; it was submitted the next day and is printed in Jour. Cont. 
Cong. 11: 656, 657. It is stated that on July 9, 1778 this "ratification of the 
articles of confederation" was signed by the delegates of eight states named 
in the text "agreeably to the powers vested in them" — ibid!. 677. This can 
only mean "subject to any conditions in the powers vested in them." The 
official copy of the Articles (as of March 1, 1781) shows signatures as fol- 
lows: by New Hampshire, Aug. 8, 1778. By Massachusetts, Rhode Island, 
Connecticut, New York on dates not indicated; but not necessarily the same 
date, nor necessarily at a later date than New Hampshire's, as shown by the 
next signatures — by New Jersey, Nov. 26, 177S; followed by Pennsylvania, 
July 22, 1778; Delaware, Feb. 22, 1779 and May 5, 1779 (but when did the 
third delegate sign?); Maryland, March 1, 1781; Virginia, undated; North 
Carolina, July 21, 1778 (but by one or more delegates?); South Carolina, 
undated; by Georgia, July 24, 1778 (but by one or more delegates?). See 
Jour. Cont. Cong. 19: 222-23. 

33 Ante n. 27. 



quite reasonably, as they may have judged in signing the "form" of 
ratification) that an attempt to secure amendments would "endanger 
the Union proposed." 34 

No more can be said than this : that seven states had by July 1778 
to some extent pledged ratification, while at least two of these, 35 and 
three of the five who did not on that day ' ' ratify, ' ' 36 were nevertheless 
strongly in favor of securing all western lands to the Confederation. 
In a letter to all the states, approved the following day, Congress ex- 
pressed the hope that "patriotism and good sense" would induce them 
also to ratify, "trusting to future deliberation to make such alterations 
and amendments as experience may shew to be expedient and just." 37 
North Carolina and Georgia ratified the same month, New Jersey be- 
fore the end of the year, 3S and Delaware early in 1779. 39 

However, New Jersey made quite clear in her final instructions to 
her delegates that she "still viewed as just and reasonable" the amend- 
ments earlier submitted by her, 40 and acceded only "in firm reliance 
that the candor and justice of the several states will in due time" give 
effect to them. 41 Moreover, in Maryland's "declaration," already re- 
ferred to, made late in 1778; she proclaimed that she would acknowl- 
edge no responsibility for any part of the war's cost unless and until 
the seeming guaranty in the Articles of Confederation (Article 9) of 
the western claims of the landed states should "be explained" (along 
with Article 3) so as to preclude such guaranty; pronouncing all 
charter claims to the Mississippi or South Sea "without any solid 
foundation"; and declaring her resolution to enter the Confederation 
only if Congress be fully empowered to fix the western limits of states 

34 Ante n. 27. The proposed Rhode Island amendment quoted ante n. 28 
having been defeated by a vote of 9 to 1 {Jour. Gont. Cong. 11: 339), her 
delegates might well have shared the opinion attributed to those of Mas- 
sachusetts, but they were not compelled by their powers to make such 

so Pennsylvania and Rhode Island as shown by their votes on June 23, 
ante n. 31. 

36 New Jersey, Delaware, and Maryland; the other two being Georgia 
and North Carolina. 

a? July 10, 1778— Jour. Gont. Cong. 11: 681. 

ss North Carolina on July 21 — ibid. 11: 709; Georgia on July 24, ibid. 716; 
New Jersey on Nov. 26— ibid. 12: 1162. 

so On Feb. 22, 1779— ibid. 13: 186-88, 236. 

•to Ante n. 29. 

4i Jour. Cont. Cong. 12: 1162. 



so claiming, all lands not therein included (and not privately owned) 
to be held by the United States for their common benefit. 42 

Congress, after its vote of June 23, 1778 above detailed, 43 sedu- 
lously avoided for some time both action plainly beyond its powers and 
votes on motions involving an issue as to its powers. 44 But the facts 
above stated called with growing insistence for affirmative action, and 
late in 1779 Congress plainly stepped beyond its powers in referring 
to a committee for report the petitions of land companies in the North- 
west whose titles Virginia had earlier in that year declared void. 45 
Jurisdiction over such a dispute was clearly outside any powers con- 
ferred upon Congress, and Virginia so moved, but a vote on that point 
was evaded. Virginia then moved that the committee be instructed to 
report upon that issue before reporting on the merits, and this was 
agreed to. The committee, however, merely reported that they found 
no distinction between the two matters to justify separate reports, 
and after thus flouting their instructions proceeded to make the recom- 
mendation (which Congress adopted and put into effect by a letter to 
all the states) that they suspend land sales during continuance of the 
war. Almost all the "landless" states — Rhode Island, New Jersey. 
Pennsylvania, and Maryland — voted for the committee reference, as 
did also Connecticut ; and because of New York 's position as a 
"landed" state, it is significant that her delegation was again, as in 
June 1778, divided. New Hampshire, Massachuetts, and South Caro- 
lina joined in the affirmative A r ote for this recommendation to the 
states, with New York again divided. 46 

« Dec. 15, 1778— ante n. 23— Hening, Statutes, 10: 549. In the accom- 
panying "instructions" of the same date to the delegates the General As- 
sembly declared that the lands, once common property, should be held 
"subject to be parcelled out by congress into free, convenient and independent 
governments" — ibid. 555. 

43 Ante n. 31. 

44 After Maryland's motion of June 22, 1778 was rejected, both Rhode 
Island and New Jersey made equivalent motions, and votes in the negative 
were given — but all amendments were rejected without reference to merits — 
Jour. Cont. Cong. 11: 639, 649, 651— see nn. 28, 29 ante. On May 20, 1779 
Virginia moved confederation by all states willing to join without those 
abstaining — i.e. without Maryland; a vote was avoided — ibid. 14: 617-18. 
Further examples are given in the text immediately following. 

*s On Virginia's action see M. Jensen, The Articles of Confederation. 

4ti Sept. -Oct. 1779. The facts are all pointed out by Mr. Jensen, ibid. 
214-15; Jour. Cont. Cong. 15: 1064-65, 1155, 1223-24, 1226-30. 



The delegates of North Carolina reported home that the policy of 
many members of Congress was that of "pursuing such a line of con- 
duct as may be most likely to obtain the main object, namely, that . . . 
all the unappropriated lands on the Western frontiers . . . may become 
the common property of the whole"; and Virginia's explanation of 
the action as due to the "clamours ... of the discontented States" 
amounted to the same thing — with the addition, however, of conced- 
ing a general opinion (which, being expressed openly in Congress, and 
somewhat covertly in its letter to the states, could not be denied) that 
westward migration might weaken the Union during the war. 47 

Probably nobody would challenge a conclusion that Congress was 
in fact determined to -nationalize the western lands. Its opinion that 
western migration during the war would weaken the Union was heeded 
by Virginia in enacting a law designed to curb settlement north of 
the Ohio River. 48 She then answered the above proceedings of Con- 
gress by a "remonstrance" which — after citing that enactment as 
evidence of her desire to give that body "every satisfaction . . . con- 
sistent with the rights ... of their own commonwealth" — pointed out 
the indisputable fact that if the northwest territory did not belong to 
Virginia, although within her charter limits and not within those of 
any other state, it must be a part of Canada. She therefore reasserted 
her title to and sovereignty within the same. 40 

But events had moved too far for arguments, however sound, to 
affect the situation the events had created. The states and their dele- 
gates in Congress had had ample time to ponder alternatives, and it 
is manifest that resolutions had been taken. The question was no 
longer one of rights but one of public policy. Two months after Vir- 
ginia's remonstrance the legislature of New York authorized its dele- 
gates to cede that state's western lands, 50 and soon thereafter another 

*~ Oct. 30, 1779 — M. Jensen, op. cit. 215, cites the delegates' reports; E. 
C. Burnett, ed., Letters of Members of the Continental Congress (1921-1936), 
4: 503,507-8. 

*sOct. 1779— Hening, Statutes, 10: 159, sec. 3. 

49 Dec. 14, 1779 — ibid. 10: 557. But this again confuses the question of 
boundaries with that of title. 

so The New York act authorizing cession was of Feb. 19, 1780; it was 
read in Congress on March 7, 1780; the deed was executed on March 1, 
1781. Jour. Cont. Cong. 19: 208-13. Acceptance, however, was not formally 
given. Under normal conditions, and the generally accepted legal rule, it 
would have been treated as accepted by implication. For very important 
reasons that rule was not applicable in this case, and acceptance was actually 
given only on Oct. 29, 1782 — ibid. 23: 694. See Carter, Territorial Papers, 



committee of Congress was directed to consider the latest of Mary- 
land's, "instructions," Virginia's "remonstrance," and New York's 
tendered but pending cession."' 1 Their report again brushed aside the 
merits of the boundary question and proposed that Congress should 
recommend to all the states that they cede their western lands to the 
Union. It was approved two months later, on September 6, 1780, 
without intervening formal consideration. 32 The delay was presum- 
ably utilized in preparing the way for approval and for Virginia's 

Immediately after the vote of approval it was moved by Vir- 
ginia's delegates that "respecting the lands that may be ceded" in 
pursuance of the foregoing action, they should be "laid out in separate 
and distinct states"; which was later changed to read, "formed into 
distinct republican states, which shall become members of the federal 
union, and have the same rights of sovereignty, freedom and indepen- 
dence, as the other states." 53 This was the assurance made to all the 
states in the letter from Congress of October 10, 1780. 

By this declaration Congress was categorically committed, in 
principle, to the nationalization of the western lands for which Mary- 
land had long contended. It may well have seemed that any contri- 
bution by her toward accelerating actual application of that policy 
could better be made in Congress than by continuing her protestant 
isolation outside the Confederation — which Virginia had alreadv 

2: 3, especially ri. 8; the deed is there printed from the original, correcting 
many errors in the text of the Journals, "the most important" of which 
are "punctuation differences, some fifty in number, most of which are 
capable of obscuring the meaning." 

si June 26, 1780— Jour. Cont. Cong. 17: 559. 

52 The report was made on June 30, 1780 — ibid. 17: 580; was read on 
July 3 — ibid. 586; but nothing more was done with it until it was approved on 
Sept. 6 — ibid. 806-7. 

ss The motion was by Joseph Jones, Madison seconding. The original 
motion included a provision that any lands ceded by Virginia, North Carolina, 
and Georgia should be "a common fund for such of the United States as 
have become or shall become members of the confederation" — ibid. 17: 808. 
The motion was considered on Sept. 18 and Oct. 10 and this thrust at Mary- 
land deleted, the language being changed to read that the lands should be 
"disposed of for the common benefit of all the United States" — ibid. 18: 
836, 915. Virginia's resolution of Jan. 2, 1781 offering cession of her lands 
to the Confederation, still contained the provision in the first form above 
quoted — Hening, Statutes. 10: 564, 566; and was agreed to on Sept. 13. 
1783 — Jour. Cont. Cong. 25: 561, 562; but Maryland was then a member of 
the Confederation. 

See post clix-lx. 



sought to make formal if not permanent. 34 At any rate the action of 
Congress proved sufficient to satisfy her. Her delegates were accord- 
ingly instructed to ratify the long-pending Articles, and did so on the 
first of March, 1781. 55 The final instructions to them reiterated, in- 
deed, her resolute adherence to old demands, 5 " but that was a matter 
of habit, or perhaps a gesture of victory, and not a necessity. Indeed, 
a month before the Maryland instructions, Virginia had shown her 
devotion to union in yielding to the majority desire of the states by 
voting a cession, on conditions which with one important exception 
were those ultimately agreed upon between her and Congress. 57 On 
the day set by Congress for the ceremony that would give legal exis- 
tence to the Confederation by the signature of Maryland's delegates, 
and before they signed, New York's deed by which she actually ceded 
her western lands was presented to Congress. 58 This order of events 
suggested a happy recognition of Maryland's persistent position, 50 no 
matter whether it was or was not deliberately planned to be such. 
Although it was not until 1786 that the last cession was made of lands 
northwest of the Ohio, 60 the ultimate outcome could not have been in 
doubt after Congress proclaimed its policy in 1780 — either as re- 
spected the northern cessions or those in the South later made by 
North Carolina and Georgia. 

5 4 On May 20, 1779 the Virginia delegates presented their instructions of 
Dec. 19, 1778, which ordered them to propose to Congress that it recommend 
to all states which had ratified the Articles that they ratify again with such 
others as should be willing to do so, the Articles to be then binding "not- 
withstanding that a part . . . shall decline" — Jotir. Cont. Cong. 14: 617. As a 
matter of fact Connecticut had already, and before Virginia acted in Con- 
gress, instructed her delegates to like effect but with a clause that Maryland 
might at any time join if she desired — April 7, ibid. 617, 624. 

ss ibid. 19: 214. 

56 ibid. 19: 139. 

5" The Maryland instructions were of Feb. 2, 1781 — ibid. 19: 140; Vir- 
ginia's act authorizing cession was of Jan. 2, 1781 — Hening, Statutes. 10: 564. 

ss Jour. Cont. Cong. 19: 211-14. Maryland's instructions had been pre- 
sented to Congress on Feb. 12, 1781 — ibid. 19: 138, 186. On other history 
of New York's deed see ante n. 50. 

59 Regardless of the question whether Maryland's position was motivated 
by concern for national interests or by a desire to protect her land speculators, 
the result must still evoke approbation. The former view of her policy has 
been taken by Mr. Jensen, The Articles of Confederation, 124, 197, 199; the 
particular evidence referred to at 237-38 seems to be unduly stressed. 

°o The last was by Connecticut, and excepted her "Western Reserve." 
Her statute was of May 1786; the deed to the Confederation — of Sept. 13, 
1786 — is printed in Carter, Territorial Papers, 2: 22-24 with notes; also in 
Jour. Cont. Cong. 31: 654-55. Massachusetts authorized cessions by acts of 
Nov. 13, 1784 and March 17, 1785; Congress declared on April 18, 1786 its 



The principles then stated regarding the use and government of 
ceded territory satisfied the principal conditions — probably fairly well 
known through individuals 61 — which Virginia was likely to attach 
to a cession by her. It did not satisfy some to which she still clung, 
but when agreement had been reached between her and Congress on 
those acceptable to both, 02 and she had ceded her lands, and Congress 
had accepted them subject to those conditions, 63 the Confederation be- 
came contractually bound to perform the undertakings to which, by 
the declaration of 1780, it had earlier been morally committed. 

readiness to accept a deed, and it was executed the next day — ibid. 28: 
271-74, 279-83. On New York's cession see ante n. 50. The final North 
Carolina act of cession, of Dec. 22, 1789, is printed in Carter, Territorial 
Papers, 4: 3-8, with important notes, including n. 2 on the cession act 
of April 1784, declared "repealed" in Oct. following; although legally, no 
doubt, irrepealable. Her deed of cession is in ibid. 9-13. The acts involved 
in Georgia's cession are found in ibid. 5: 18, 95, 142, with explanatory notes. 
On South Carolina's "shadowy claim," ceded to the Union on Aug. 8, 1787, 
see Carter, Territorial Papers. 5: 19 n. 32. Justice Curtis concluded that 
it had no merit— 19 How. (60 U.S.) at 607n. 

6i K. M. Rowland, Life of George Mason (1892), 359-67, cited by Mr. 
Jensen, The Articles of Confederation, 229. 

62 In her resolution of Jan. 2, 1781 which conditionally authorized cession, 
Virginia included the stipulations: (1) "that all purchases and deeds . . . 
from . . . Indians . . . for any lands within . . . said territory . . . for 
the use or benefit of any private person . . . and royal grants within the ceded 
territory inconsistent with the chartered rights, laws and customs of Vir- 
ginia, shall be . . . absolutely void"; and (2) that after any cession, "all 
the remaining territory of Virginia" should be "guaranteed to . . . Virginia 
by the said United States" — Hening, Statutes, 10: 566. The Congress- — 
when considering Virginia's "remonstrance" of Dec. 1779, ante n. 49— had 
approved on Oct. 10, 1780 the first of these conditions to the extent of agree- 
ing that no Indian purchases unratified "by lawful authority" should be 
"deemed valid or ratified by Congress" — Jour. Cont. Cong. 18: 916. In the 
final action of Sept. 1783 on Virginia's conditional cession offer of Jan. 2, 
1781, it was judged sufficient by Congress to agree that all ceded lands 
should be held for the benefit of all the states, without specific reference 
to Indian titles — iftirZ. 25: 561, 562 (antecedents in ibid. 24: 271, 381, 384, 
406-9, 444 n., and 25: 559-64). See also Hening, Statutes, 11: 566-70. 

For the action taken in Sept. 1783 on the second condition stipulated in 
the cession offer of 1781, as above quoted, see post at notecall 73. In the 
Federal Convention Virginia renewed, unsuccessfully, her efforts to secure 
a guaranty by the Union of her remaining territory — M. Farrand, The Records 
of the Federal Convention of 17S7 (4 vol. 1937), 1: 11, 22, 202. 

63 See ante n. 53. Virginia's final cession act of Oct. 20, 1783 (an act 
of June 27, 1783 is referred to in Jour. Cont. Cong. 24: 444 n.) is in Hening, 
Statutes, 11: 326-28. The deed of cession of March 1, 1784, is in ibid. 567. 
It is printed from the original (incorporating the text of the cession act of 
Oct. 20, 1783) in Carter, Territorial Papers. 2: 6-9 with notes. The proceed- 
ings in Congress, ending in acceptance of the proffered cession and execu- 
tion of the deed on March 1, 1784, are in Jour. Cont. Cong. 26: 89-90, 112-17. 
See, on causes of delay in this consummation, Jefferson's letter in Writings 
(Ford ed.), 3: 411-12. 




A contract to act, however, cannot create in the promisor a legal 
power to act. If the Confederation had any powers, whence were 
they derived ? If any were expressly or by necessary implication con- 
ferred by the Articles of Confederation, it could only have been bj^ 
that (Article 11) which provided that "Canada acceding to this con- 
federation, . . . shall be admitted into . . . this union : but no other 
colony shall be admitted . . . unless such admission be agreed to by 
nine states." 64 

Could the words "other colony" refer to anything else than de- 
pendencies of the British Empire other than those united by the Arti- 
cles ? Specifically, assuming that Maine had been given independence in 
1786 by Massachusetts, certainly she could not then have qualified 
for admission as such "other colony." Could she have demanded 
admission, as of right, on the ground that she was "a former part 
of the confederation"? 05 Since she had been such "part" only in 
the sense that she had been included within the borders of Massa- 
chusetts, the question is doubtful. No doubt she would have been 
admitted, in fact, but hardly in logical consistency with the words of 
the Articles. The question was quite the same (except that there had 
been actual inhabitants of Maine long before the postulated separa- 
tion from Massachusetts) as respects the applicability of the Articles 
to colonies formed in the Old Northwest which would have been al- 
ready "in" the Union, geographically considered, because included 
within the limits of one or another of the former colonies, now inde- 
pendent states. If applicable, then no doubt such new colonies could, 
politically speaking, be "admitted" to the Confederation as new en- 
tities when severed from their parent states. But if so admissible, and 
so admitted, the number of members of the Union would clearly be 
considerably increased ; and would it then be desirable to permit 

64 Art. 11. 

e r > I am commenting upon a query made by Edward Stanwood in his 
article "The Separation of Maine from Massachusetts," Massachusetts His- 
torical Society Proceedings, 1907-1908: 125, at 133. Note, however — in view 
of the history of Kentucky and Maine — the official punctuation in Art. IV, 
sec. 3 of the Constitution: "New States may be admitted by the Congress 
into this Union; but no new States shall be formed or erected within the 
Jurisdiction of any other State; nor any State be formed by the Junction of 
two or more States, or Parts of States, without the Consent of the Legisla- 
tures of the States concerned as well as of the Congress." 



continued admission by nine states as provided in Article 9 ? 

When the committee of which Jefferson was chairman drafted in 
1784 the first ordinance for government of the West (already largely 
acquired), and for admission of new states organized therein, they re- 
ported a plan in which it was assumed that Article 11 applied to 
the new western territory. All the above difficulties immediately ap- 
peared. Congress disposed of the last of these by providing that 
admission should be by "so many ... as may, at the time, be com- 
petent." 66 It left open, of necessity, all the other questions. As a 
matter of fact it can scarcely be contended that Article 11 could apply ; 
or, consequently, that any power to admit new states was to be found 
in the Articles — even one granted by reasonable implication from 
words granting other powers. 

Moreover, that power was not the primary and most vital of the 
three powers in question. Primary was the power to acquire the 
western territories. If that existed, the authority to govern settlers, 
organize new states, and admit them, could possibly be implied. But 
there were no words whatever in the Articles that could be read as 
conferring the power to acquire. The situation was, simply, that Con- 
gress had acquired territories without express powers, and was re- 
solved to acquire still more ; and that its members were agreed on the 
policy of organizing governments and creating new states regardless 
of problems of legality. 

The inevitable conclusion is that if any of these powers was ever 
held, legally, by the Confederation it was gained through amendment 
of the Articles. As to that, the Articles provided that there should 
not be ' ' any alteration . . . made in any of them, unless such alteration 
be agreed to in a congress of the united states, and be afterwards con- 
firmed by the legislature of every state." 07 This provision was for 
express amendments, and excluded any amendment other than express. 
And no express amendment was ever seriously considered. The par- 
ties to the compact were, however, sovereign states. 6S They certainly 

ee Jour. Gont. Cong. 26: 251-52 (April 20, 1784). See also Jefferson's 
account of this matter in his Writings (Ford ed.), 4: 156-57. George Ticknor 
Curtis commented upon these matters in his History of the Origin, Forma- 
tion and Adoption of the Constitution (2 vol. 1854, 1858), 2: 76, 344-45. See 
drafts of the ordinance of 1784 in Jefferson's Writings. 

GTArt. 13— Jour. Cont. Cong. 19: 221. 

6s "If one adheres strictly to the conception of sovereignty as implying 
legal authority, then the only bodies whose doings must be held to be law, 



could not be bound by one compact if they agreed to another in dero- 
gation of the first ; even private individuals can rescind their contracts 
by mutual agreement. 

It is quite evident from the events recited in preceding pages 
that by a succession of acts of various states and of Congress — which, 
if considered chronologically, reveal an orderly and integrated pro- 
gression — there had been created, as stated above, a general under- 
standing and expectation with respect to the western lands by Octo- 
ber 1779, and this was the solid basis of the letter from Congress to 

because those bodies did them, were the states; they possessed the technical 
legal authority" — A. C. McLaughlin, A Constitutional History of the United 
States (1936), 135. Professor McLaughlin reached that conclusion with 
difficulty — ibid. 133-35; partly because of references to usage of the word 
"sovereignty" in international relations, where it is a complete misnomer. 
A very careful historian summarizes the organic counterargument thus: 
"The actual government of the United States from 1775 to 1781 was . . . 
in the Continental Congress, whose sole political authority consisted of the 
credentials given by each state to its delegates; these were not only in- 
definite, but could be changed or revoked at will. ... So far, therefore, as 
legal theory is concerned, the case for state sovereignty seems to be com- 
plete. ... It is equally clear, however, that no mere diplomatic body had 
ever exercised such a wide range of functions as were actually performed 
by the Continental Congress. It maintained a Continental army, . . . 
issued a Continental currency, incurred debts for the Union [confederated 
states] without consulting the states, and finally, in 1778, ratified a treaty 
with a foreign power. . . . Without a formal constitution, Congress man- 
aged to organize executive departments for war, foreign affairs, and finance, 
as well as a general postal service. It even organized a court for the trial 
of appeal in prize cases. From this practical point of view it can hardly 
be denied that the Continental Congress . . . was a de facto federal govern- 
ment, acting for a real political entity" — (he goes on to say, "known to 
the outside world as the United States of America," but that is irrelevant). 
E. B. Greene, Foundations of American Nationality (1922), 55S-59. Mr. 
Greene would, manifestly, have considered this argument much stronger 
after legal establishment of the Confederation on March 1, 1781 under the 
Articles of Confederation. 

Professor Greene, however, was not talking about the same thing as 
Professor McLaughlin. The former is talking of government and arguing 
that there was an embryonic federal nationality. It is true that there was 
a distribution of powers between states and Confederation, a weak federal 
government of enumerated powers. But no sovereignty could be attributed 
to it; indeed, for lack of a people politically organized — as the people of all 
the united states became by popular adoption of the new Constitution in 
1788 — there was no federal state. The leading historical discussions of the 
question of sovereignty in the Confederation era are cited by Professor 
McLaughlin in his work above cited, at 134 n. 20; see particularly C. H. 
Van Tyne, "Sovereignty in the American Revolution" (1907), American 
Historical Review, 12: 529-45. 

One cannot find in the terminology of any time the answers to ques- 
tions of which that time was unconscious. It can, however, suggest latent 
differences of thought, the possible roots of later divergencies. The word 
"sovereignty" was used in the Declaration of Independence and Articles of 



all the states in October 1780. 60 That letter made it clear that a 
decided majority of the states, though not all, were in substantial 
agreement that Congress would exercise all the powers in question if 
the states, by cession of their western lands, would make their exercise 

It had clearly been the strategy of Congress to produce that un- 
derstanding. In 1781, long before the treaty of peace had given 
(some thought) additional basis for the claim that title was in the 
states collectively, New York had ceded to them her land (or re- 
linquished to them her claims). 70 In 1783, the delegates of Maryland 
asserted that "[more than a majority] several of the states" had 
"acceded to the confederation under the idea" that the western 
territories "should be considered" as the common property of the 
Confederation; 71 that is, presently, without cessions — in recognition 
of the collective achievement of independence. That this allegation 
was historically justified in its narrower form is indubitable. A strong 
argument could be made for it even in the broader form of the 

Confederation, but in only two of the twenty-four state constitutions in 
force up to 1830 — see Nathan Dane's General Abridgment and Digest of 
American Law tvith Occasional Notes and Comments (8 vol. 1823-1824; vol. 
9, 1829, with app. 1830), 9 (app.): 24, 29-31, 44. Sovereignty was manifestly 
divided under the new federal Constitution, and presumably that is the 
reason why the word does not occur therein. Historians will find in Dane, 
loc. cit. sees. 13-18, an examination of state constitutions down to 1830 with 
reference to the concepts of sovereignty, compact, and independence. 

On the nature of governments and location of sovereignty from 1776 on- 
ward compare J. Kent, Commentaries on American Laio (6th ed. 1848), 1: 
212 n.; J. Story, Commentaries on the Constitution (1833), sees. 198-217, 
especially 214; N. Dane, Abridgment, 9 (app.): 15-22; Benj. Rush, "Address 
to the People of the United States" (1787), in H. Niles, Principles and Acts 
of the Revolution in America (1822), 403. 

Dane's artificiality was illustrated by the argument that the colonies 
were made "free and independent states" by the proclamation to that effect 
in the Declaration of Independence — ibid. 9 (app.): 14, 18; not by the 
Revolution, the treaty of peace, or history in general. However, Webster's 
type of argument against Hayne was no better with reference to the national- 
ism which, he contended, is embedded in the Constitution's preamble: "We 
the people of the United States." although its history proves that its mean- 
ing was, "We the people of . . . (naming the states uniting in ratifying 
the Constitution)." 

eo As Professor McLaughlin said of the Articles of Confederation: "it 
was understood before adoption that the tremendously important matter of 
the ownership of the back lands, and the administration of the back settle- 
ments — in other words the extension of the empire — was to be in the hands 
of Congress" — A. C. McLaughlin, "The Background of American Federalism" 
(1918), American Political Science Review, 12: 215, at 239. 

to Carter, Territorial Papers, 2: 4. 

7i Jour. Cont. Cong. 25: 557. 



bracketed words, which Maryland deleted as a matter of forensic 

The issue was too momentous and too dangerous to admit of any 
direct settlement. In avoiding the dangers inherent in any attempt 
to settle it directly Congress evidenced extraordinary sagacity. In 
the proceedings just referred to above, the matter under consideration 
was Virginia's condition that, after cession of the Northwest, "all 
the remaining territory of Virginia . . . should be guaranteed to . . . 
[her] by the United States." 72 Maryland's remarks were incidental 
to a motion challenging title in Virginia since legal establishment of 
the Confederation by Maryland's adherence to it in 1781. A com- 
mittee of Congress advised rejection of both Virginia's condition and 
Maryland 's motion, saying : ' ' Congress cannot agree to guarantee . . . 
the lands described ' ' — namely those south of the Ohio — -' ' . . . without 
entering into a discussion of the right of the state of Virginia to the 
said land ; that by the acts of Congress it appears to have been their 
intention ... to avoid all discussion of the territorial rights of the 
different states, and only recommend and accept a cession of their 
claims, whatsoever they might be, to vacant territory." 73 

'2 See ante n. 62. 

73 See ante n. 62. The report is in Jour. Cont. Gong. 25: 559-63; quota- 
tion from 563. Reference has already been made to Edmund Randolph's 
compilation of "facts and observations" for the guidance of our peace com- 
missioners, submitted to Congress Aug. 16, 1782 — ante n. 12. In reading 
that report it is essential to remember, (1) that their duty was to submit 
what could be urged as a legal case upon the British Commissioners (who 
had nothing to do with the question of justice as between our states, con- 
sidered individually and collectively), and (2) that they were bound to 
adhere, so far as possible, to the policy referred to in the quotation just 
given in the text. They laid down these principles as those which our 
commissioners must sustain: "1. That the territorial rights of the thirteen 
United States, while . . . colonies, were . . . defined in the instructions given 
to Mr. John Adams . . . August, 1779. 2. That the United States, con- 
sidered as independent sovereignties have succeeded to those rights, or 
3. That if the vacant lands cannot be demanded upon the preceding grounds, 
that is, upon the titles of the individual States, they can be deemed to have 
been the property of his Britannic Majesty immediately before the Revolu- 
tion, and to be now devolved upon the United States collectively taken" — 
Aug. 20, 1782, Jour. Cont. Cong. 23: 497. In the instructions to Mr. Adams 
the title had been assumed to be in the individual colonies; he was to de- 
mand that all territory within the outer bounds of the colonies be "yielded 
to . . . the States to which they respectively belong" — Jour. Cont. Cong. 14: 

Unity of opinion was never reached before the cession, and no judicial 
decision on the merits of the question was ever or can ever be given; but 
the Supreme Court has in some cases assumed title to have been in the 
individual states. Chief Justice Taney, for example, so assumed — post 



This distinction did not affect the phraseology of the deeds by 
which the rights of the individual states were actually passed to the 
states collectively. 74 In accord with the phraseology in which the 
differences between the states had so long been expressed, each state 
conveyed all claims alike as to the "soil" and the "jurisdiction." And 
this practice continues to the present time, though with altered and 
varying meanings of the latter word, in conveyances of or agreements 
respecting land owned by the United States within the boundaries of 
the several states. 75 Since this word "jurisdiction" is common in the 
state documents of the time, and an understanding of it is in some 
cases indispensable, a brief comment on it seems desirable. 

preceding notecall 104; likewise Justice McKinley — post n. 89; compare 
remarks of Chief Justice Jay in Chisholm's Est. v. Georgia (1793), 2 Dall. 
419, 470. A case before the General Court of Virginia in 1846 involved 
seizure of defendant prisoners at a point above low-water mark on the north 
side of the Ohio River, at a moment when aiding escaping Virginia slaves 
in unloading a boat and finding their way ashore; supposedly with knowl- 
edge of the fact that the Negroes were slaves and in conscious furtherance 
of their escape. The special verdict in the lower court did not include any 
finding on those points. Most of the judges disregarded that fact as a basis 
for judgment; several remarked that they were officially bound to assume 
Virginia's original ownership of the land beyond the Ohio and her actual 
cession of land and jurisdiction beyond the River to the Confederation (both 
points challenged by defendants' counsel); several, however, wrote lengthy 
discussions of those points, all favorable to Virginia. But the case was 
decided solely on the question whether defendants, standing in the water 
above low-water mark, were within Virginia and subject to her jurisdiction 
when engaged in the acts in question. It was held in the negative and the 
prisoners were discharged — Commonwealth v. Garner (1846), 44 Va. (3 
Graft.) 655-786. No appeal to a federal court was possible; and there was 
no decision by the state court of the historical questions, whatever was 
said on them being dictum. See Handly's Lessee v. Anthony (1820), 5 Wheat. 
(18 U. S.) 374. 

'* A non-lawyer who reads the deeds of cession (for example those of 
New York and Virginia — Carter, Territorial Papers, 2: 4, 6) will be puzzled 
to find in them no evidence of this distinction. They explicitly granted 
"soil" and "jurisdiction," and also all rights of the grantors in and respecting 
soil and jurisdiction. This is merely to grant the same thing twice in dif- 
ferent words; one who owns land has only rights, or enforcible claims, in it. 
Either form of words is alone sufficient, although the vast majority of deeds 
are in the second form; and such tautology as in the deeds here in question 
has always been common. 

75 See New York — Carter, Territorial Papers, 2: 4; Virginia — ibid. 7, 9; 
Massachusetts — ibid. 11; Connecticut — ibid. 23. The North Carolina deed 
read "sovereignty and territory" — ibid. 4: 4. Georgia used "jurisdiction" — 
ibid. 5: 142, compare 19. "The landless States differed ... in defining the 
terms on which the public lands should be held for the usufruct of the 
Confederation" — that is, held by the latter for the benefit of all the mem- 
bers — "all of them except Maryland holding that they should be used simply 
for the fiscal benefit of the Union, while the political jurisdiction should 



Various examples of its usage have already been quoted. 76 A 
case of particular interest and importance arose in the Western Re- 
serve. In 1786 Connecticut ceded to the Confederation "all the 
right, title, Interest, Jurisdiction and claim" which she held in 

continue to vest in the States. ... At last the Maryland view prevailed." 
J. C. Welling, Amer. Hist. Assoc. Papers, 3: 413. 

The old broad meaning of political dominion or power to govern which 
the word "jurisdiction" bore in the Virginia cession is also illustrated in Art. 
IV, sec. 3 of the Constitution, in passages in Kent's Commentaries (6th ed. 
1848, 1: *257, 384), in the opinion given by the supreme judicial court of 
Massachusetts to her House of Representatives, March 10, 1841 — 42 Mass. 
580; and in the mutual cessions between Georgia and the United States of 
April 24, 1802 (very similar to those between Connecticut and the United 
States of 1795) — Carter, Territorial Papers, 5: 142. In acquiring land from 
France, Spain, Mexico, Russia, and Denmark the word "jurisdiction" — being 
peculiar in the sense in question to English political literature — does not 
appear in the treaties, but of course the same political dominion was secured, 
and under our political system has been held, as Chief Justice Taney said, 
in trust for the new states created from the territory ceded, which, when 
created, were invested with it so far as required by a state's constitutional 
position in the federal Union. 

The Union owns immense areas today within the states, and in the 
agreements between them respecting such areas the word "jurisdiction" 
may mean "judicial jurisdiction," the power of ordinary police regulation, 
or anything else up to so-called "exclusive" jurisdiction — which, literally, 
can never exist in either party, but only so far as their relations under the 
Constitution permit. Contemporary material can be located through P. S. 
Twitty, The Respective Powers of the Federal and Local Governments within 
Lands Owned or Occupied by the United States (Government Printing Office, 
1944) but with no historical development. 

7(5 See the passages quoted ante nn. 12, 19, 21, 28, 29, and 74. To these 
examples three others may be added. By the proclamation of 1763 (Oct. 7) 
Great Britain placed under four distinct governments all territories in 
America just ceded to her by France except the Old Northwest. That was 
left with nothing but a few troops, military officers, and Indian agents until 
1774. The Lords of Trade writing on Sept. 3, 1766 to George III referred 
to this region as "precluded from Civil Jurisdiction and Settlement" — C. 
W. Alvord and C. E. Carter, The Neiv Regime, 1765-1767 (Illinois Historical 
Collections, 11), 371. A committee headed by James Monroe reported to 
Congress on May 3, 1785 that "The State of Virginia" — when she relin- 
quished to the Confederation claims to land in the Northwest — "having also 
relinquished her right of jurisdiction, and no government being as yet estab- 
lished over the said Inhabitants and settlers . . ." of the Illinois Country 
by Congress, "they are of course free from any . . . allegiance to the Union 
whatever" — Jour. Cont. Cong. 28: 331. Another committee, headed by James 
Duane, having recommended preparation of an ordinance regulating Indian 
trade, and particularly a prohibition against trade with them by civil or 
military officers, commissioners and agents for Indian affairs, a resolution 
was immediately passed that these measures were "not to be construed to 
affect the territorial claims of any of the states, or their legislative rights 
within their respective limits" — ibid. 25: 693. 

The first great dispute litigated between the United States and a state 
after adoption of the Constitution was one of jurisdiction over the public 
lands— Chisholm's Est. v. Georgia (1793), 2 Dall. 419. 



western lands 77 lying outside of her Western Reserve. She later 
(1795) sold to the Connecticut Land Company interests in the Re- 
serve which were described in a statute empowering her agents to 
give to the individual stockholders of that Company deeds "quitting 
in behalf of this State all right, title, and interest juridical and terri- 
torial. " 78 Connecticut's claims were disputed by New York and Vir- 
ginia, and these deeds read as "quitclaim" deeds — that is, as though 
intended merely to convey such rights as later events might show the 
grantor to have held. This might explain the employment of the 
word "juridical" (or "judicial"), and the absence of any assertion 
that "jurisdiction" was either ceded or reserved. On the other hand 
the Company seemingly paid a price adequate for good title, 79 which 
of course tended to show that no quitclaim in the sense indicated was 
present. The nature of the conveyance was therefore doubtful from 
the beginning. At least some of the original grantees thought a grant 
of "interest juridical and territorial" was one of "jurisdiction," mak- 
ing them colonial proprietors empowered to set up and govern in the 
West a dependency of Connecticut. 80 But if that were not so, their 
sub-grantees, holding deeds under Connecticut, could not submit to 
the government that Governor St. Clair of the Northwest Territory 
sought to impose on them; yet both the Company and Connecticut 
refused to assert governmental power. 81 It is quite clear that the 
United States would never have recognized a Connecticut colony in 
the midst of federal territory, nor have consented to recognize the 
validity of Connecticut's original western claims to the extent of ac- 
cepting from her grantees the cession of their "juridical right" which 
they tendered in 1798. 82 However, Connecticut offered at the end of 
1798 to release her "jurisdiction," 83 — the Company presumably fol- 

77 Carter, Territorial Papers, 2: 23. 

78 See recital in original deed to stockholder in C. L. Shepard, "The 
Connecticut Land Company" (1916), Western Reserve Historical Society 
Tract No. 96, 170. The deed here reads "judicial," but the resolution of 
the General Assembly (May 1795) — quoted by John Marshall, post n. 84 at 
97 and in the Historical Collections of the Mahoning Valley, 1 (1876): 151 — 
required the conveyance to read as stated in the text, and Marshall states 
that the deeds so read, ibid. 

i»B. A. Hinsdale, The Old Northwest (1888), 380, to the contrary. 

so Shepard, op. cit. 85; Hinsdale, op. cit. 375, quoting C. "Whittlesey. 
Historians have made the same assumption — Mr. Shepard at 86, President 
Hinsdale on pp. 375, 378, of their books just cited. 

si Hinsdale, op. cit. 376, 377-78. 

82 ibid. 378. 

ss Carter, Territorial Papers, 2: 657. 



lowing with its offer because it assumed the two phrases to be 
synonymous — and. after much delay committees of Congress (that of 
the House headed by John Marshall) 84 recommended in 1800 that 
the release by Connecticut be accepted ; though even that was stoutly 
resisted as involving a guaranty of the validity of her original claims. 
Embarrassments were avoided by a grant to Connecticut from the 
United States of all title to the soil in the Reserve (which, were Con- 
necticut's claim invalid, the United States would have gotten from 
other states, and which it was assumed 85 would pass through her to the 
purchasers from the Company), at the same time that a release of 
"jurisdiction" was accepted from Connecticut. 86 The Reserve was 
then made a county of- the Northwest Territory. 

It is clear from all this that "jurisdiction" as used in the Con- 
federation era meant ultimate political jurisdiction, or lawful right 
to exercise governmental control. It was seemingly an echo of the 
political literature of medieval England. 87 In the Dred Scott case 
Chief Justice Taney and Justice Curtis agreed in giving the word 
the meaning stated, as regards the right passed to the Confederation 
by Virginia, the former manifestly understanding that at least full 
powers of government were transferred, 88 and the latter explicitly 
conceding that "sovereignty" was ceded. 80 North Carolina, indeed, 

84 American State Papers, Public Lands, 1: 94-98. 

85 Rashly, as of that date. 

se Act of April 28, 1800— Carter, Territorial Papers, 3 : 84. Hinsdale 
treated this whole subject very fully — Old Northicest. 370-88. See St. Clair 
to Secretary of State, Jan. 1796 — Carter, Territorial Papers, 2: 549. 

87 As interpreted by Mr. Mcllwain — C. H. Mcllwain, Constitutionalism: 
Ancient and Modern (rev. ed. 1947), 77-78, 84-85, 139, 145. But the meaning 
of gubernaculum as interpreted by him (ibid.) had greatly changed; there 
no longer existed the sharply contrasted fields of government — one of ab- 
solute discretion, the other in which law was supreme. Only the latter re- 
mained; the control existing of "lawful right," and only that control, would 
have been evidenced by "government." So that Virginia, in ceding land and 
"jurisdiction," in effect ceded land and "rightful power of government." 

88 19 How. (60 U. S.) at 605, when this statement is taken in conjunction 
with his general argument. 

so ibid, at 434. His words were that "the powers of Sovereignty and 
the eminent domain were ceded with the land." The eminent domain is, of 
course, included in sovereign power when the latter concededly exists. Assum- 
ing that the colonies became sovereign states when they attained indepen- 
dence — ante n.68 — this would not determine the boundaries within which each 
held title to lands, sovereignty, and eminent domain. They were simply 
assumed by Chief Justice Taney to have had all these in the Northwest 
Territory- — post preceding notecall 100. Likewise by Justice McKinley in 
Pollard's Lessee v. Hagan (1845), 44 U. S. 212, in saying (in a case involving 
the Southwest Territory) : "When the United States accepted the cessions 



employed in its conveyance the phrase "sovereignty and territory" 
to indicate the rights transferred. 90 

Thus the states united in Congress exercised, as a matter of fact, 
two of the powers by accepting the cessions and passing ordinances 
for the sale of lands and for the government of settlers thereon; the 
existence of the third power, to admit new states, was assumed in the 
debates relating to Kentucky. By their votes in adopting some or 
all of these measures all of the states concurred in the general policy 
stated. There was no protest by any state, or by citizens of any state. 

Now, Madison wrote in The Federalist : "All this has been done; 
and done without the least color of constitutional authority. Yet no 
blame has been whispered ; no alarm has been sounded. ' ' 91 

But was it "done without the least color of constitutional au- 
thority"? It is essential to be clear on what Madison was discussing, 
and why. Certainly the actions of Congress up to October 1780, and 
until some indefinite date thereafter, could be properly characterized 
as usurpation. But he was not discussing the question whether the 
actions of the states and of Congress had ultimately cured the usurpa- 
tion. To have expressed an opinion that they had would have weak- 
ened the point he was urging. He was referring solely to written, or 
express, "authority." He was defending certain specific grants of 
"effective powers" in the new Constitution; and, comparing it with 
the Articles of Confederation, emphasized "the dangers resulting 
from a government which does not possess regular powers commensu- 
rate with its object." His sole example of this "danger" was the 
"excrescent power" assumed by the old Congress over the Crown 

of the territory, they took upon themselves the trust to hold the municipal 
eminent domain for the new states" to be later created in the territory 
ceded, "and to invest them, with it, to the same extent, in all respects, that it 
was held by the states ceding the territories" — ibid. 222. 

flo Carter, Territorial Papers, 4: 13. 

91 The Federalist, No. 38. He had himself voted for the supposed usurpa- 
tions as conditions agreed upon between Congress and Virginia, Sept. 13, 
1783 — Jour. Cont. Cong. 25: 554-64. In The Federalist he defended them: 
"I mean not ... to throw censure on the measures which have been pur- 
sued by Congress. I am sensible they could not have done otherwise. The 
public interest, the necessity of the case, imposed upon them the task of 
overleaping their constitutional limits" — No. 38. John Quincy Adams at- 
tempted to explain why the acts were legal: "The ordinance of 17S7 had 
been passed by the old Congress of the Confederation without authority from 
the States, but had been tacitly confirmed by the adoption of the present 
Constitution, and the authority given to Congress to make rules-and-regula- 
tions for the Territory" — Memoirs, 5: 7. This suggested explanation is 
manifestly inadequate. 



lands. Congress, he said, had "assumed" the power, "overleaping 
their constitutional limits. ' ' He plainly implied that, on the contrary, 
the Constitution expressly provided for the power; and if one ex- 
amines a later number of The Federalist in which he enumerated the 
powers expressly given to Congress one finds a plain implication that 
he found such provision in the power to "make all needful rules and 
regulations respecting the territory or other property belonging to 
the United States." 02 His argument in Number 38 would obviously 
have been greatly weakened by any faintest suggestion that Congress, 
by securing an implied amendment of the Articles in plain violation 
of an express provision in one of them, might have given legality 
to its subsequent actions in the pact with Virginia. 

Madison, then, should not be regarded as having intimated any 
opinion as to whether the initial usurpation by Congress was or was 
not cured by amendment of the Articles of Confederation. Whether a 
motion earlier made by him in the Federal Convention can be regarded 
as indicating his opinion on that question will be considered below. 93 

George Ticknor Curtis, just after arguing before the Supreme 
Court the question of the constitutionality of the Missouri Compro- 
mise, suggested nearly a century ago in his History of the Constitu- 
tion, after reviewing all historical precedents, that acquisition of the 
territory by the Confederation had been made a pre-condition (and 
he meant a legal pre-condition) to the Confederation's existence; and 

92 Namely, No. 43, post cxi-xii. Taney, in Dred Scott v. Sandford (1857), 
60 U. S. (19 How.) 393 at 447, referred to Madison's remarks in No. 38 and 
made no reference to No. 43. In the latter, Madison quotes the rules-and- 
regulations clause, and simply says: "This is a power of very great impor- 
tance, and required by considerations similar to those which show the pro- 
priety" of the new-states clause. In discussing the latter he had just written 
as follows: "The eventual establishment of new States seems to have been 
overlooked by the compilers of that instrument" — the Articles of Confedera- 
tion. "We have seen the inconvenience of this omission, and the assumption 
of power into which Congress have been led by it. With great propriety, 
therefore, has the new system supplied the defect." Clearly, he here regards 
the two powers as quite distinct, equally needed, both provided for. 

There were very grave reasons of discretion for not going deeply in No. 
38 into implied powers. It would not have been wise, especially, to evoke 
thought on the point that whereas the Articles expressly reserved all non- 
delegated powers to the states, the Constitution had no such provision. Nor 
to direct thought too strongly to the idea that the new government, which 
many thought (as the addition of ten amendments soon proved) was already 
too strong to satisfy public opinion, might be further strengthened by im- 
plication. Both the Articles and the new Constitution provided for express 
amendment only. 

93 post at and following notecall 122. 



that from this implied power the other power" of erecting territorial 
governments ("forming new states") and admitting them into the 
Confederation could in turn be implied. 

The acquisition of the territory itself rested upon acts, which 
were so directly and expressly connected with the establishment of 
the . . . Confederation, as to make the acquisition itself part of the 
fundamental conditions of that Union, and the principal guaranty of 
its continuance. Among the declared purposes for which these ac- 
quisitions were made was that of forming new States, to be admitted 
into the Union ; and as all the States acquiesced . . . they may be said 
to have conferred upon Congress an implied power to . . . carrv it into 
effect. 94 

A theory of primary and secondary implied powers is certainly 
undesirable. Besides, Mr. Curtis made his suggestion hesitatingly, 
and coupled it with an alternative suggestion that is manifestly un- 
acceptable. 95 Perhaps for these reasons — perhaps also because his 
work was published at a time when even lawyers had barely emerged 
from the fog thrown over the Ordinance of 1787 by ideas of "social 
compact" and "natural law" 96 — his suggestion has received little 
attention from students of the Confederation era. 97 On some theory 
Mr. Curtis decided that at least "it must be taken that the territorv 

"G. T. Curtis, History of the Constitution, 1: 294. 

95 These matters were fully discussed by the judges in the Dred Scott 
case, in which Mr. Curtis argued before them the issue of the constitutional 
powers of Congress in the territories. That case was argued twice in 1856, 
decided in March 1857. Curtis's first volume of the History was published 
in 1854; the second in 1858. The suggestions made in the first were not 
altered in the second. Just preceding the passage quoted in the text he 
admitted that the question whether the admission by Congress of new states, 
after adoption of the Articles, would have been "beyond the scope of its con- 
stitutional authority" was one of grave doubt; and immediately following 
the quoted passage he returned to the doubts raised by "the want of an 
express authority"— ibid. 293, 294, 295; see also 2: 347-48. 

In addition to thus indicating a cautious distrust of his first suggestion 
he added the alternative thought that "perhaps this power existed, by im- 
plication, in the revolutionary government" as a "common attribute of 
sovereignty belonging to every government" — ibid,. 1: 293-94. This was 
essentially two theories, each an impossible one. Sovereignty was incon- 
testably in the states — ante n. 68; and on the idea of revolutionary action, 
compare Justice Chase's theory, post n. 107. 

86 Post cxcv. 

97 Of modern works on the Constitution, that dealing most fully with 
the subject of federal territories and the admission of new states is W. W. 
Willoughby's The Constitutional Law of the United States (2d ed. 3 vol. 
1929). His opinion is quoted below. Nothing at all on the point under dis- 
cussion has been found in such other works as it has occurred to the writer 
to consult. 



came rightfully into the possession" — meaning, of course, became the 
property — "of the United States." 98 

However, the opinion "that the Congress of the Confederation 
had no constitutional power to accept these cessions of territory ' ' has 
been stated to be "sufficiently plain" by Mr. Willoughby, who was 
certainly an authority on both our political institutions and our con- 
stitutional law." He had, however, seemingly never given attention 
to more than the text of the Articles. His opinion seemingly rested 
solely on the dictum of Chief Justice Taney in the Dred Scott case, 
since that is the only authority he cited. "They" — the old Congress, 
which accepted the Virginia cession — "had no right to accept it," 
Taney declared; but he meant, as he explained, no right under the 
Articles of Confederation to accept it, citing no authority and giving 
no reasons. None were necessary if he had in mind merely express 
authority. It is clear that he could have had no other in mind. 

It is also clear, in view of his statements, that he must have ap- 
proved the above argument that the Articles were impliedly amended 
if that argument had been the only one available to sustain the 
validity of the acts of the old Congress. However, it was not. He 
advanced another reason for their validity. When Virginia, said he, 
ceded her lands, 

Undoubtedly the powers of sovereignty and the eminent domain 
were ceded with the land. This was essential, in order to make it 
effectual, and to accomplish its objects. . . . But this Confederation 
had none of the attributes of sovereignty. ... It was little more than a 
congress of ambassadors, authorized to represent separate nations, in 
matters in which they had a common concern. 

It was this Congress that accepted the cession from Virginia. 
They had no power to accept it under the Articles of Confederation. 
But they had an undoubted right, as independent sovereignties, to 
accept any cession of territory for their common benefit, which all 
of them assented to ; and it is equally clear, that as their common 
property, and having no superior to control them, they [but surely not 
Congress unless the delegates were acting under special instructions] 
had the right to exercise absolute dominion over it, subject only to the 
restrictions which Virginia had imposed in her act of cession. . . . The 
territory belonged -to sovereignties, who, subject to the limitations 
above mentioned, had a right to establish any form of government 
they pleased, oy compact or treaty among themselves, and to regulate 

osG. T. Curtis, History of the Constitution. 1: 294. 

as W. W. Willoughby, Constitutional Law (2d ed.), 1: 409. 



rights of -person and rights of property in the territory, as they might 
deem proper. It was by a Congress, representing the authority of 
these several and separate sovereignties, and acting under their au- 
thority and command, (but not from any authority derived from the 
Articles of Confederation,) that . . . the ordinance of 1787 was adopted. 
. . . We do not question the power of the states, by agreement among 
themselves, to pass this ordinance, nor its obligatory force in the terri- 
tory, while the confederation or league of the states in their separate 
sovereign character continued to exist. 100 

This suggestion of a compact made between the sovereign states, 
and performed by the Congress as the donee for that special purpose 
of Virginia 's sovereign power to cede her territory, and of the other 
states' sovereign powers to consent to join her in common ownership 
and administration, rests on the same basis (the agreement of sover- 
eign states) as that above offered by the writer 101 in support of Mr. 

icoDred Scott v. Sandford (1857), 19 How. (60 U. S.) 393, 434-35; italics 

ioi Ante at notecalls 63, 69 seq. Assuming that Virginia owned the North- 
west, then the interstate compacts were entered into, and the Articles are 
to be regarded as amended, on March 1, 1784, the day on which Virginia 
ceded the land in accordance with and subject to the conditions antecedently 
agreed upon. There would be no fictitious taking effect by relation back- 
ward to validate antecedent acts — for there would be no such acts. Difficulties 
would occur, however, if one assumed the true owner to have been New 
York, whose deed had been earlier given, and unaccompanied by the counter 
formalities on the part of the Confederation which were present in the case 
of Virginia. 

Either theory is supported by the opinion expressed in the same case by 
Justice Campbell: "there is only one rule of construction, in regard to the 
acts done, which will fully support them, viz: that the powers exercised 
were rightfully exercised, wherever they were supported by the implied 
sanction of the State Legislatures, and by the ratifications of the people" — ■ 
19 How. (60 U. S.) at 504; compare 512. But all these views are to be dis- 
tinguished from the essentially alegal view of Justice Chase (quoted by 
Campbell, ibid.) that "the powers of Congress originated from necessity, 
and arose out of and were only limited by events, or, in other words, they 
were revolutionary in their very nature." 

Alexander Johnston thought that "The right to acquire property is as 
much the natural right of a government, however limited, as of an in- 
dividual. . . . We are therefore to take the sovereign right to acquire terri- 
tory as the justification of the ordinance of 1787" — "Ordinance of 1787," 
in J. J. Lalor, Cyclopaedia of Political Science, 3 (1884): 32 a; italics added. 
This is extraordinary law, political science, and history. Mr. Schouler's idea 
was different. To him the Ordinance of 1787 was above all need of justi- 
fication, and being passed, rectified all past errors: "In Jefferson's plan" — 
1784, post Sec. IV — "one traces . . . the first lines of the method upon which 
the sublime experiment of State propagation has since proceeded. — at this 
early date almost a usurpation, but sanctioned and fully provided for in 
our ampler charter of 1787" — James Schouler, Thomas Jefferson (1919), 
130. Subject to one change, Mr. Hockett is entirely correct in saying that 



Curtis' suggestion of an implied amendment of the Articles. In re- 
sult they are only to a degree identical. 102 The amendment view seems 
to be decidedly preferable. 

In the first place, it is preferable in theory. It rests upon con- 
sideration of what the states and the Congress actually did over a 
term of years, and of such recorded discussions of these actions by 
the delegates of the states as now exist. Chief Justice Taney's solu- 
tion of the "problem is one of pure political theory, applied to one spe- 
cific act — Virginia's cession. It ignores, Otherwise, the historical back- 
ground. It requires one to consider the ' ' United States in Congress, ' ' 
although usually acting under the Articles, to be acting in these par- 
ticular matters outside them, under a special agency of whose existence 
the proceedings of the Congress and letters of its delegate-members 
reveal no consciousness. 

In the second place, the amendment theory is vastly preferable in 
substance. The theory of the Chief Justice obviously gave a compact 
character to every provision in the Ordinance, for the states acquiesced 
in all. It is plain from his language that he took every detail of the 

"Congress had no better authority for what it did than the consent of the 
states implied in the acts of ceding their claims to the western lands," — 
in reliance upon the promises made by the delegates of other states in Con- 
gress to do certain things if such cessions be made — "and their subsequent 
acquiescence in the ordinances" — H. C. Hockett, Political and Social History 
of the United States, 1492-1828 (1931), 197. The acquiescence is, legally, of 
minor significance, the act in reliance upon a promise important. I dis- 
agree only with the added statement by Mr. Hockett that "To make them 
[the ordinances] strictly legal an amendment should have been added to 
the Articles." 

102 The quotations are from Chief Justice Taney. 60 U. S. at 441, 435. 
Considering merely the validity of the Confederation's acts, their validity 
results equally from both of the two theories. But if one asks, how many 
of its acts were compacts? — the answer under the two theories varies im- 
mensely. If, under the view (universally accepted as sound) that the new 
Union "took nothing by succession from the Confederation," that the latter 
was dissolved and its ordinary enactments became mere "nullities," one 
asks which of its acts would survive as compact "engagements" confirmed 
by Art. VI, sec. 1 of the Constitution, the answers would similarly vary. 

There is a passage in G. T. Curtis's History of the Constitution, 2: 348, 
which either carries an implication that the two Unions were one and that 
the Constitution was a revision of the Articles or shows how little Mr. 
Curtis had reflected upon the necessity of explicitly stating all powers 
when a new political entity was created. He remarks, namely, that since 
the power to admit new states could be found in the Articles only by im- 
plied amendment, and therefore might be doubted, and was of peculiar im- 
portance, it was "eminently necessary" that it be expressly granted in the 
Constitution; seemingly not, then, the powers to acquire territory and set 
up territorial governments. 



instrument as the act of the sovereign states. This was vastly more 
than the Ordinance itself claimed. It went further than the most 
fervid eulogists of it — and Taney never was one — have ever asserted. 
Here and elsewhere the excesses in his argument are doubtless attribu- 
table to the intellectual enthusiasm of an advocate developing a case. 
His inconsistencies are explainable as due to a lack of time for revision 
of his opinion, on which he labored up to the last minute before it was 
filed. He was minimizing the powers of Congress in all other terri- 
tories than the Old Northwest, and therefore instinctively made every- 
thing in the Ordinance for that territory the act, not of Congress, 
but of the sovereign confederated states. 10 "' 

i°3 If Congress was here acting as an agent, was it ordinarily acting as 
a legislature? If so, there would necessarily have to be a government. In 
Chief Justice Taney's opinion one finds this striking statement: "It must 
be remembered that, at that time, there was no Government of the United 
States in existence with enumerated and limited powers; what was then 
called the United States, were thirteen separate, sovereign, independent 
States, . . . and the Congress of the United States was composed of the 
representatives of these separate sovereignties, meeting ... to discuss and 
decide on certain measures which the States, by the Articles of Confedera- 
tion, had agreed to submit to their decision. But this Confederation had 
none of the attributes of sovereignty in legislative, executive, or judicial 
power" — 60 U. S. at 434; italics added. No distinction is here indicated 
between the period before the Confederation acquired technical legal char- 
acter in 1781, and that after 1781 but before it acquired the specific powers 
to take territory and establish governments over people thereon. But in 
any event, Taney, in talking here of states and sovereignty, is just as blind 
to imperfect federal government as Professor Greene, ante n. 68, in talking of 
that government, was blind to state sovereignity. Of course the Confederation 
had a government of enumerated powers, by valid compact after 1781, though 
not sovereignty. Attributes of sovereignty are not essential to town, county, 
or higher government. Whether the enumerated powers and duties of the old 
Congress were powers of political "agency" or were "governmental" powers is 
a matter of words. 

The language of the Confederation era implied its recognition as a 
government — ante at notecall 68 and that note. The Constitution plainly 
so refers to it in Art. VI, sec. 1. Although one finds in Dr. J. F. Jameson's 
Essays in the Constitutional History of the United States . . . 1775-1189 
(1889) an essay by him on "The Predecessor of the Supreme Court" and 
one by J. C. Guggenheimer on "The Development of the Executive Depart- 
ments," there is none on the character of the old Congress. The transition 
in that respect from the old to the new system evidently seemed too plain 
to suggest comment. The greatest difference between the Articles on one 
hand and the Constitution (and the Dickinson draft of the Articles) on the 
other hand was that the Constitution created a national state adopted by 
the people, and not a confederation of independent states. But perhaps the 
next greatest difference between them is the attempt to make a clearer 
division and more extensive distribution of governmental powers. The 
powers conferred on the central government in each case were powers there- 
tofore exercised by the states through their executive, judicial, and legisla- 
tive organs. The powers granted to the old Congress "for the more con- 



It must be emphasized against the theory of Chief Justice Taney 
that the agency of Congress (the Articles being silent, as on the points 
here in question) could be defined only by the terms of the compacts 
created by the actions of the states and Congress, and recorded in their 
respective state papers. Those compacts amounted to this : that the 
states should cede their land — that Congress should receive the same, 
establish governments, and nurture new republican states for admis- 
sion to the Confederation. These compacts were created by the ac- 
ceptance of Virginia's cession deed, on the conditions which had been 
agreed upon between the parties precedent to the conveyance. It is 
a simple fact that there were no compacts covering the details of the 
Ordinance of 1787 ; consequently, that was not in all. respects the act 
of the states. And if one accepts the writer's theory that the Articles 
were amended, there were no amendments beyond the agreement just 
stated; but the agreement that Congress should create governments 
left their details to legislation. It will be later seen that for some of 
its provisions there coidd not have been any authority from the states 
— nor, after its re-enactment by the new Congress in 1789, authority 
under the Constitution. 

As respects implied, amendment of the Articles, it is obvious that 
no distinction is possible between powers to acquire, sell, establish 
governments within, and admit states created within, the ceded terri- 
tory. All these powers were made constitutional if any amendment of 
the Articles was effected by the events above narrated, and it seems 
clear that there is ample legal basis for holding that an amendment of 
the Articles covering all the powers in question was effected. 

In considering the reasonableness of this view, it should not be 
forgotten that the inadequacy of the Articles and the necessity for 
their amendment was never, from 1781 to 1787, absent from the minds 

venient management of the general interests of the united states" (Art. 5) 
were a medley of executive powers — witness Mr. Guggenheimer's essay, ante; 
of judicial powers — see Dr. Jameson's essay, ante; and — must we not say 
of the residue? — legislative powers. A comparison of the lists of granted 
powers in the Articles (no. 9) and the Constitution (Art. I, sec. 8), and of 
both with the powers exercised by the legislative organs of the several 
states, requires that conclusion as a matter of traditional nomenclature. 
It is true that, for example, when the old Congress fixed quotas of soldiers, 
moneys, and military supplies which the states should respectively furnish 
they could perform or not perform their obligations so declared, because the 
central government could not coerce them. But this relates merely to the 
distribution of sovereignty between states and union. It affected the efficacy 
of the latter's powers but not at all their nature. 



of members of Congress and other men in public life ; 104 that for con- 
siderable periods of time, off and on, appeals by Congress for action to 
that end were before the assemblies of the states ; and that the problem 
of the western lands would certainly have been ranked by members of 
Congress — with those of revenue and commerce, interstate and foreign 
— among the most important. Indeed, as respects relative importance, 
the fact that Congress exercised two of these powers on its own re- 
sponsibility is good evidence that they were considered most important 
to the permanence of union. Nor is it to be forgotten that no genera- 
tion of Americans ever proved themselves cannier or wiser in politics 
than those of the Revolutionary era. Once an end was actually at- 
tained — authority to attain which may for years have been desired — 
ratification of their acts was never sought in later proposals for amend- 
ment of the Articles ; something new and further on was alone there- 
after demanded. It was so with the actual acquisition of federal terri- 
tory and setting up of territorial government ; both of these were con- 
summated facts in 1784, yet the only power thereafter asked for, and 
the only one so explicitly granted in the Constitution as to be beyond 
shadow of a doubt, was that of admitting new states. 

Reference has been made above to Madison's statement in The 
Federalist that Congress overstepped its constitutional limits. If it 
did so, it was by a motion seconded b}^ him on September 6, 1780, 105 
from which resulted the revolutionary declaration by Congress on 
October 10 that any lands ceded by the states in accordance with its 

104 See for citations C. Warren, The Making of the Constitution (1929), 
index s. v. "Articles of Confederation"; E. C. Burnett, The Continental Con- 
gress (1941), index s. v. "Confederation — proposed additional powers." Note 
that in the report of Randolph-Ellsworth-Varnum — Aug. 22, 1781, Jour. Cont. 
Cong. 21: 894-96 — it was recommended that the Confederation required 
"execution" in the following respects, among 21; namely, "12. By ascer- 
taining the jurisdiction of Congress in territorial questions" — ibid. 895; 
note the word "jurisdiction" (ante at notecall 76 seq.). And the committee 
further reported that "without the extension of its power" in other cases the 
war might "receive a fatal inclination and peace be exposed to daily con- 
vulsion"; namely, a power "4. To recognize the Independence of and admit 
into the federal Union any part of one or more of the U. S., with the consent 
of the dismembered state" — ibid. On the other hand, in the seven additional 
articles, recommended for adoption by the states and addition to the Articles 
of Confederation, in the report of Aug. 7, 1786 (generally credited to Charles 
Pinckney), nothing on the federal territories appears — ibid. 31: 494-9S. 
Nor will the subject be found mentioned in the other places to which the 
references of Mr. Warren and Mr. Burnett lead one. It does appear in the 
records of the Federal Convention, and in a way substantially to affirm the 
statement in the text. 

los Ante n. 53. 



appeal of September 6 would be formed into republican states and 
admitted as equals into the Confederation. 106 And the appeal to the 
states, drafted by James Duane, which led to that result, after refus- 
ing to decide between the conflicting claims of the states, said this : 

it appears more advisable to press upon those states which can remove 
the embarrassment respecting the western country, a liberal surrender 
of a portion of their territorial claims, since they cannot be preserved 
entire without endangering the stability of the general confederacy; 
to remind them how indispensibly necessary it is to establish the fed- 
eral union on a fixed and permanent basis, and on principles accep- 
table to all its members; how essential to public credit and confidence, 
to the support of our arnry, to the vigour of our councils and success 
of our measures, to our tranquillity at home, and our reputation 
abroad, to our present safety and our future prosperity , to our very 
existence as a free, sovereign and independent people. . . . 107 

The powers were exercised out of a supreme necessity. More than 
any other causes of the time these supposed acts of usurpation created 
nationalism. No ratification of them was ever sought or needed. They 
were the concerted acts of the sovereign states, either outside the Ar- 
ticles as Chief Justice Taney suggested, or in amendment of them. 

As regards the legal validity of the Ordinance, the choice must be 
between the two theories above suggested. There is no other by which 
one can avoid the conclusion that all the acts of the Confederation in 
acquiring territory and organizing governments therein were totally 
illegal. 108 

iQGJour. Cont. Cong. 18: 915. 

w Ibid. 17: 806; italics added. 

108 Mr. Curtis' suggestion of sovereignty in the Confederation, ante n. 
95, is of course disregarded. The "engagements" of the Confederation 
assumed by the new Union under Art. VI, sec. 1 of the Constitution were 
valid compacts. 

Professor Channing wrote in his History: "As to the constitutional or 
legal status of the Ordinance of 1787 or of Jefferson's earlier ordinance, or, 
indeed of the contract made by Congress with the Ohio Company, nothing 
can be said. It is clear that the Congress of the Confederation had no power 
to make any of them. . . . There is even more doubt as to the standing of 
the compact clause [s] of the Ordinance than as to the other parts of it. 
Granting that Congress had power to establish governments in the western 
country, it surely had no authority to prohibit the dwellers in the States to 
be formed therein from doing this, that, or the other" — E. Channing, A 
History of the United States, 3 (1912): 547. He here cleared his pages of 
belief in compacts that bound Congress, the original states, the people of 
the Territory, and future states formed therefrom; but in ridding himself 
of that error he fell into the more egregious error of failing to see that 
(under his admission of a power to govern) all the Ordinance was good 
as legislation for the territory. 



All of the powers in question were actually exercised by the old 
Congress save that of admitting new states. The admission of Ken- 
tucky was discussed, as already remarked, but the Confederation was 
displaced by the new Union without action being taken. The non- 
exercise of the admissions power could not affect its legal existence 
while the Confederation endured. The exercise or nonexercise of any 
power by, or the legal existence or nonexistence of any power 
in, the Congress of the Confederation could not affect the ques- 
tion of its existence in the new government under the Constitution. 
Extraordinary ideas have been entertained, and some puzzling state- 
ments made even in the Supreme Court, respecting the relation be- 
tween the Ordinance of the old Congress and the Constitution which 
was in process of being framed when that enactment was passed. Their 
relation must later be considered. But first, with the propositions just 
stated in mind, it is desirable to review what was actually done in the 
Federal Convention. 

The actual compacts entered into between Virgina and her sister 
states have just been stated. Those were engagements, entered into 
by the united states before the adoption of. the Constitution, which by 
it were made "as valid against the United States under this Constitu- 
tion as under the Confederation. ' ' The new government was therefore 
obligated to perform them. The question is now to be considered 
whether it was empowered by express provision of the Constitution 
to perform each of the obligations thus assumed. 


The power to admit new states was provided for from the outset 
in at least all the leading plans submitted for consideration. 109 The 
problems presented by Maine, Kentucky, and Vermont, even aside 
from that of disposing of the ceded territory northwest of the Ohio, 
made such a provision indispensable. It was approved 110 at an early 
date. Moreover, because it necessarily became entangled with the dis- 

109 Parrand, Federal Conveyition, 1: 22, 231 (Virginia plan), 136 (Pinck- 
ney plan), 245 (New Jersey plan). Hamilton's brief plan, actually pre- 
sented to the Convention did not mention it — 291; his "unpresented plan" 
did, ibid. 3: 630. 

no June 5, ibid. 1: 117( committee of the whole) and July IS, 2: 39 (in 
Convention); ref. to Com. of Detail, ibid. 2: 133, rep. by same, 188; ref. to 
Com. of Style, 578; rep. by same, 602. 



cussion of other difficult problems — respecting congressional represen- 
tation, respecting the creation of neAv states by division of old states 
with or without their consent, and respecting the guaranty to such 
states of republican government and equality Math the original states 
— it retained prominence throughout the Convention's deliberations. 
That the other powers must have been constantly in the minds of 
the members seems certain. They must have realized that after the 
union of the states in the Confederation had been achieved through 
the cession of western lands, "the motives by which it was formed, 
and concessions by which it was accompanied and followed, created 
a vast obstacle to any future dissolution." 111 The fact of union was 
inherited from the Confederation ; the purpose of the Constitution was 
only "to form a more perfect Union." Moreover, Georgia and North 
Carolina still held great claims in the Southwest. They, with all other 
states, had been urged in 1780 to cede their lands; and their cession 
was unquestionably of no lessened import to the new Union. Finally, 
unless Kentucky were to be admitted as a new state with its then ex- 
isting boundaries and organization, the territory therein included 
would have presented the same problems as to both acquisition and 

Acquisition of Territory. 

Despite these indubitable facts it is equally a fact that our present 
Constitution contains no general reference whatever to the acquisition 
of territory, either domestic or foreign. That this was a discreet 
omission as regards foreign territory has been pointed out above. 11 '- 
The power to acquire such territory has repeatedly been declared by 
the courts to be implied in the powers to wage war and to make trea- 
ties. 113 The power to acquire territory by discovery or occupation 
has also been recognized ; either as established simply by precedent, or 
as inhering of right in the Union because the states have concededly 
renounced such powers and it is assumed to reside somewhere of 

There are statements in opinions of the Supreme Court and in 
commentaries on the Constitution that a power to acquire territory 

111 G. T. Curtis, History of the Constitution, 1: 140. 

112 Ante lviii. 

us W. W. Willoughby, Constitutional Law (2d ed.), sec 231, gives cita- 
tions; and see post n. 117. 



is implicit in the power to admit new states. 114 This is not satisfactory 
logic even as respects domestic territory. As respects foreign terri- 
tory, it is far more difficult to attribute any such view to the framers 
of the Constitution. The Federal Convention voted to strike from 
the provision for admission of new states, in its early form, the phrase 
"within the limits of the United States," 113 leaving the provision as 
it now stands : "new States may be admitted by the Congress into this 
Union." But doubtless some members who, like Gouverneur Morris, 
foresaw annexation of foreign territory shared his opinion 116 that 
states should never be formed therefrom ; and it cannot be known how 
many were either of that or of the contrary opinion among those who 
voted to omit the phrase above quoted. Consequently, one cannot as- 
sume an understanding in the Convention that a power to annex 
foreign territory is impliedly conferred by the power to admit new 
states. A view that the power was nevertheless so conferred would be 
strained and illogical, 117 in addition to being unnecessary. 

Why no provision was made, either expressly or by reasonable 
implication, for the acquisition of the still unceded lands claimed by 
individual states within the treaty limits of the Union, is only in- 
ferentially explainable. It can hardly be assumed that the members 
of the Convention remained to the end in doubt as to whether they 
were creating a totally new political entity, all of whose powers must 
be granted de novo. It is also difficult, today, to see anything in the 
powers of acquiring domestic territory and organizing governments 

114 w. W. Willoughby, op. cit.. sec. 236, gives citations. When ratifica- 
tion of the treaty ceding Louisiana was pending Jefferson found no consti- 
tutional difficulty in the way of acquiring foreign territory; but he also 
found no power "for holding foreign territory, still less for incorporating 
foreign nations into our Union" — see his letters in Writings (Ford ed.), 8: 241, 
244. If he found acquisition permissible, no logical denial of a power to 
hold would seem possible — except by one who construed that to mean "hold 
for statehood" and denied that new states could ever be formed from foreign 
territory. See post cxxvi-viii 

us On Aug. 29-30 — Farrand, Federal Convention. 2: 188, 446. 454-58. 

lie Post cxxvi-viii. 

ii" Chief Justice Taney endorsed it in Dred Scott v. Sanford (1857), 19 
How. (60 U. S.) 393, 446-47. W. W. Willoughby, Constitutional Law (2d ed.), 
deals with this theory in sees. 231-35, but what is there said relates almost 
wholly to another question stated in two ways: (1) can foreign territory 
be annexed and not be formed (ultimately) into states? or (2) is the power 
to annex such territory limited to that which is taken for the purpose of 
forming new states? The latter was the view not only of Chief Justice 
Taney, but also of Chief Justice Marshall implied in Loughborough v. Blake 
(1820), 5 Wh. (18 U. S.) 317, 324. 



therein which could, have impeded provision for them in the Constitu- 
tion. The violence of past opinions on these matters explains why the 
old Congress had sought and secured these powers by indirection, 
rather than through express amendment of the Articles of Confedera- 
tion. But by 1787 events had proved that they were powers which 
sentiment throughout the country had either long demanded or had 
finally recognized as desirable. Looking backward, and applying to 
the Union as of 1789 our present-day conceptions of it as a sovereign 
state, it might be argued that the Union would necessarily have had 
power, from the beginning, to accept any territory owned by member 
states; and that therefore no provision granting such a power was 
needed. And it could be assumed that the members of the Convention 
would have acted on this reasoning — notwithstanding that they else- 
where explicitly provided for purchase from the states for the Union 
of sites for public buildings and military establishments. But, aside 
from the great objections to which these suggestions are obviously 
open, it is to be remembered that the anticipated acquisition of lands 
from North Carolina and Georgia — the only domestic territory for ac- 
quisition of which (if of any) provision could then have been thought 
necessary — was a very special case. Territory had been claimed by 
Virginia, and other territory by these states, which in each case was 
also claimed by the Confederation as former Crown land. The com- 
promises which had composed the differences with Virginia had in- 
volved compacts with the Confederation, and the Constitution pro- 
vided for assumption by the new Union of such obligations of the old. 
But there had been no mutuality of actions which could create com- 
pacts with Georgia and North Carolina. It seems clear, therefore, that 
this was a case in which there should have been a specific provision 
for power to acquire, to govern, and to form new states. We have 
seen 118 that Madison so regarded the situation as respects the last 
two powers. Logically, the need would seem equally clear as respects 
the power to acquire. 

Its omission remains surprising. An examination of the records 
of the Convention suggests that a continuing violence of opinion prob- 
ably explains the absence from the Constitution of any reference to the 
subject. And this violence of opinion probably also explains why debate 
of the problem was postponed to a late date in the Convention's ses- 

ii8 Ante lxxxiv-v. 



sions. Discussion of the power to admit new states "within the limits 
of any of the present States" was immediately embroiled by the ques- 
tions whether the erection of new states within the limits of the 
"large" states, if desired by a majority derived from the "limited" 
states, should be subject to the consent of the former; whether, as 
sovereign, these might withhold consent ; whether there was any likeli- 
hood that Virginia or North Carolina would make trouble as respected 
their transmontane settlements, or Massachusetts respecting Maine, or 
New York respecting Vermont; whether as regarded New York's 
sovereignty in relation to Vermont, it was not already denied by the 
"assurances" which the old Congress had given to Vermont. On one 
side the rights of the "large" states were deemed dominant. On the 
other, it was contended that the Constitution should at least provide 
that nothing in it should be construed to prejudice "the right" of 
the United States to the lands (or at least the "vacant" lands) ceded 
by Great Britain in the treaty of peace. Other members were for 
ignoring all these problems, and their view prevailed. The provision 
was adopted that nothing in the Constitution should be construed "to 
prejudice any claims of the United States, or of any particular 
State." 110 

Thus, the compromise reached under the old Congress was left 
to operate under the new Union and its results proved to be equally 
happy. North Carolina and Georgia ceded their lands ; Kentucky 
and Vermont were soon, and ultimately Maine, admitted as states ; and 
the problem of domestic territory disappeared. 

Establishment of Territorial Governments. 

Before considering theories usually considered in seeking a con- 
stitutional basis for the power to govern territorial inhabitants, we 
may glance at the unique theory of Thomas Hart Benton. Conceding 
that the great powers presupposed by the action of the Congress were 
lawfully exercised, he found that authority to enact the Ordinance of 

no Art. IV, sec. 3, sub-sec. 2. The Convention sat from May 25 to Sept. 
17; the debate was on Aug. 29-30; see Farrand, Federal Convention. 2: 455-65. 
A motion that all such claims be left to the Supreme Court for decision was 
rejected — 458, 459, 466. References to the irreconcilable differences between 
the "large" and the "limited" states are numerous. 

See n. 102 ante for comment on a curious passage in G. T. Curtis' 



1787 was implicit in the grant of title and "jurisdiction" in the deeds 
ceding the territory to the Confederation. The compacts between 
Virginia and the Confederation were most explicitly and emphatically 
recited in accepting the conditions of her grant ; they created, and by 
delimitation defined, the powers of the Confederation. Benton re- 
ferred to them as "limiting" the Confederation's right, which would 
otherwise have been an "absolute authority" over the ceded territory; 
and he found the source of that absolute authority in the deed. No 
question of the right of a government of limited powers, specified in 
the Articles, to take the territory in 1784 was raised. No inquiry into 
the constitutional source of the power of the new Union to take the 
territory or govern the territory's inhabitants seemed necessary. The 
deeds which ceded "jurisdiction" in 1784 supplemented the Articles 
and supplemented the Constitution ! 

The character of the ordinance . . . the new Congress having 
adopted it . . . became the measure of the authority which the [new] 
Congress exercised. And these will be found to be of the highest 
sovereign order — ruling people without their consent . . . ; granting 
what it pleased as favor, nothing as right ; and even abolishing the 
rights of private property without compensation : for many were the 
slaves set free in the old French settlements of Indiana and Illinois 
without compensation — set free for a public political object, without 
reference to the rights, or regard to the will of the owners. 120 That 
act of Congress, of August 7th, 1789, did all this, and with universal 
approbation ; and. . . . Certainly not under any written authority any- 
where ; for none such can be shown. How then did it get these powers ? 
Simply as proprietor, and as sovereign ! The Federal Congress of '89 
got it as the Continental Congress of '87 got it — as a right incident to 
ownership and jurisdiction, and as a duty under the cession acts ; and 
the only limitation upon its power was in the cession acts — in the 
obligation to dispose of the soil, to populate it, and to build up future 
Republican States upon it. . . . On no other ground than that of 
absolute authority (limited only by the cession acts) over these 
Territories can . . . this act of Congress be accounted for ; and upon 
that ground I place it, disclaiming any help from any quarter — from 
Federal or State authority, single or combined. 121 

120 There is no authority for this — post n. 158 of Sec. III. 

121 Historical and Legal Examination of . . . the Bred Scott Case (1857), 
36-37. This theory was consistent with the recognition of jurisdiction as 
a political power distinct from ownership of the soil — ante lxxxi-iii; and for 
that reason it was closely associated with the befuddled argument that the 
rules-and-regulations clause of the Constitution related to territory only as 
property because the Ordinance of 1787 had already dealt with the Con- 



Such statements explain how the Confederation acquired ownership, if 
it had power to acquire it, but not how it received power. They do not 
explain how the new Union either acquired the territory or assumed 
obligations relating thereto, or how the new Congress acquired govern- 
ing power. Moreover, if mere proprietorship gave power to govern, 
why not more clearly power to sell and dispose of the soil? If no 
provision in the Constitution was necessary as to the first, why was it 
not even less necessary as to the second? 

The action of the Federal Convention as respects the power to 
govern settlers within acquired territory is even more extraordinary 
than its silence respecting the power to acquire territory. It was only 
after the report of the Committee of Detail, and when four-fifths of 
the time during which the Convention sat had already elapsed, that 
the first reference was made to any power (of those in which Ave are 
interested) other than that to admit new states. A motion being then 
made to refer to a committee "additional powers" for consideration, 
we find among them the provisions that Congress should be empowered 
"to dispose of the unappropriated lands of the United States" and 
"to institute temporary governments for new States arising thereon." 
Madison then moved specially the commitment of these provisions. 122 

Is this motion to be taken (the question has been raised above) 123 
as indicating that in Madison's opinion those powers had not been 
granted to the Confederation by implied amendment of the Articles? 
Not at all — rather the contrary, and for a most obvious reason. It 
will be noticed, namely, that one of his motions assumed that the ceded 
territories were "the property of the United States" ; hence, that their 

federation's only Territory as respected jurisdiction — see ibid. 91 and post 
at notecall 184. In another place in his book Benton expressed the idea 
embodied in the passage quoted in the text, deriving the power to pass the 
Ordinance from "the right of the owner to use what he owned" — which, 
alone, would be inconsistent with the theory in the text — "and of the 
sovereign to rule within his sovereignty" — ibid. 35, italics added; see post 
n. 205. 

But in another passage he expressed the inconsistent view that by the 
prior-engagements clause (Art. VI, sec. 1) the Constitution confirmed the 
compacts between the Confederation and the land-ceding states, and says: 
"The Constitution provided for the fulfillment of both branches of the en- 
gagement, and the adoption of the ordinance fulfilled the political part of 
the engagement, — building up political communities on the Territory; and 
. . . the acts of Congress to sell the public land, fulfilled the other" — ibid. 
50. (This was not a correct statement of the compacts — ante xci.) 

122 Aug. 18 — Farrand, Federal Convention, 2: 321; Madison's motion, 324. 

123 Ante at notecall 93. 


acquisition had been legally effected. If so, all the other powers — in- 
cluding, by equal intendment of the member states, the power to admit 
new states — had likewise been legally conferred. It would seem then 
that the true import of Madison's motion is merely an implied recog- 
nition that all the powers of the new Union must be created de novo. 124 
We have just seen that it proved impossible to do this as regarded the 
acquisition of domestic territory; and that the omission did not indi- 
cate a decision that the power was unnecessary. Its need was con- 
ceded, but its omission was forced by the impossibility of disentangling 
it from the power to admit new states. 

Much the same was true of the power to organize governments 
within ceded territories, howsoever acquired. Madison's motion, above 
stated, was referred to the Committee of Detail. 123 Nothing more is to 
be found respecting it until, in the midst of the long and tense debate 
on admission of new states, Gouverneur Morris suggested and the Con- 
vention adopted 12 " the provision which in its final form in the Consti- 
tution reads : 

The Congress shall have power to dispose of and make all needful 
rules and regulations respecting the territory or other property of the 
United States; and nothing in this Constitution shall be so construed 
as to prejudice any claims of the United States, or of any particular 
State. 127 

The background of the last clause has been made clear above. On 
the first clause the Convention records throw no light whatever. 

It is, of course, quite clear throughout the controversy of the Con- 
federation era respecting western lands that the intent was to set up 
general governments — states, in the sense of political science. The 
instructions given by the original states to their delegates in Congress 

124 Were the members of the Convention fully conscious that they were 
creating a totally new state? If not so at the beginning, when did they 
become so? There is considerable in the records bearing on these questions. 
Compare Hamilton's early remarks (June 19) — Farrand, Federal Convention, 
1: 294-95. Indeed, pertinent materials go further back; see E. P. Smith, 
"The Movement toward a Second Constitutional Convention in 1788," in 
J. F. Jameson, Essays, 46-115; and R. L. Schuyler's remarks on the Annapolis 
Convention, Constitution of the United States . . . Its Formation (1923), 26-27. 

125 Aug. 18 — Farrand, Federal Convention, 2: 324, 325. 

126 Aug. 30 — ibid. 459, 466. According to Madison's Notes Morris was 
the mover and the vote was 10 to 1, Maryland being the dissenter, but this 
last was questioned by Dr. Farrand, ibid. 459 n. 4. 

127 Art. IV, sec. 3, sub-sec. 2. 



so indicate. The titles of their enactments so indicate. 128 Various 
illustrations of the language that would naturally be used to express 
such intent have appeared in earlier pages; 120 and references to this 
usage as respects the word "states" will be made more than once here- 
after. 130 In all these cases the language used includes references to 
the "organization" or "establishment" of "states" or "govern- 
ments." The old Congress had in fact created for the Northwest 
Territory a government not only general in nature but intended to 
be peculiarly permanent. However, the confederated states being un- 
qualifiedly sovereign before adoption of the Constitution, their power 
to do all this — in one way or another — could not be doubted. The 
compacts between Virginia and the other states authorized the estab- 
lishment of a territorial government; and those compacts neither pre- 
scribed nor limited the nature of such government. 131 

The First Congress of the new Union, whose members included 
twenty-two who had assisted in framing (and eighteen who had 
signed) the Constitution, re-enacted the Ordinance by which terri- 
torial government had been organized in the Northwest in order that 
it might "continue to have full effect." 132 Nor is there any evidence 
that there was any disposition to question, save in the detail of slavery 
when that had become an issue in national politics, the desirability or 
constitutionality of such a general government as had in fact been 

Everybody admitted that the acquisition of the land itself had 
been essential to the creation, and that its sale was essential to. the 
maintenance, of the Union. Justice McLean pointed out in opinions 
on the circuit, and repeated in his opinion in the Dred Scott case, that 
the sale of the land made necessary such government as was required 
for the protection of the land and its purchasers. 133 Chief Justice 

12s Jefferson's ordinance of 1784 bore no formal title, as printed in the 
Jour. Cont. Cong., but was described as "a plan for the temporary govern- 
ment of the Western territory" — 26: 118. 248, 255, 274. For the Ordinance 
of 1787 see post n. 292. 

12' 1 Ante preceding notecall 19 and at notecalls 22, 53. 

i3o post clxxii-vi, ccliv-vi, n. 225 of Sec. IV, ccclxxix. 

131 Ante xci. ' 

132 Aug. 7, 1789 — Carter, Territorial Papers. 2: 203. Charles A. Beard, 
Economic Origins of Jeffersonian Democracy (1915), ch. 2, gives the data 
relative to men who were members of both the Convention and the First 

133 in 1854 he had remarked in a circuit opinion that, since Congress 
indubitably had power to sell the public lands, that "renders necessary the 



Taney went much further, having in mind the duty to nurture new 
republican states. "Some form of civil authority," he said, "would 
be absolutely necessary to organize and preserve civilized society, and 
prepare it to become a State." "Until that time arrives, it is un- 
doubtedly necessary that some Government should be established, in 
order to organize society, and to protect the inhabitants in their per- 
sons and property. " " What is the best form of government, ' ' he said, 
"must always depend on the condition of the Territory at the time, 
and the choice of the mode must depend on the exercise of a discre- 
tionary power by Congress, acting within the scope of its constitu- 
tional authority." 13 ' 4 Taney did not, indeed, recognize a discretion ex- 
tending so far as the prohibition of slavery. But Calhoun and William 
Wirt and William H. Crawford did, in 1820, when as members of 
Monroe's cabinet they endorsed the constitutionality of the Mis- 
souri Compromise — though Calhoun, at least, later repudiated that 
opinion. 135 Madison, too, during the Missouri debate, though he chose 
to deny to Congress the right to take such action as a matter of dis- 
cretion, had no historical evidence and no logical reasoning on which 
to base the denial. 136 That authority had in some manner been con- 
ferred upon Congress by the Constitution to establish territorial gov- 
ernments of very broad powers was necessarily assumed by all these 

But all this is quite apart from the question of the source of the 
power so to act. At this point one may well note the interpretations 

organization of a government for the protection of the persons and property 
of the purchasers"— United States v. Guthrie (1854), 58 U.S. (17 How.) 284. 
He reiterated this in 60 U.S. at 540, 542. 

134 60 U.S. at 449, 448. 

135 J. Q. Adams, Memoir's, 5: 5. Their hearts here prevailed, as Adams 
said, over their reason, since they could point to no grant of power to Con- 
gress authorizing such action. But the same was true of Adams himself as 
respected the view that a prohibition of slavery in a territory "forever" 
would bind a state later created therefrom, after its admission into a Union 
of "equals." See his remarks — ibid. 5, 9; also his Writings (Ford ed.), 7: 1. 

Missouri was admitted free of any provision relating to slavery therein, 
but slavery was barred from other territory north of 36° 30'. Of several 
matters contested in the Missouri debate, this was only one, and Professor 
Woodburn came to the conclusion that it "was probably not debated more 
than three hours. . . . Very few slavery extensionists questioned the right 
and power of Congress to prevent the spread of slavery to the Territories. 
That question, in the minds of those who opposed restriction in Missouri, 
was incidental to the question of the right of Congress to impose conditions 
upon a State" — J. A. Woodburn, "The Historical Significance of the Missouri 
Compromise," Amer. Hist. Assoc. Report, 1893: 249, at 290. See post n. 277. 

136 post at notecall 152. 



given to the Convention's work by Chief Justices Marshall and Taney. 
The former expressed various views, all of them quoted in every 
discussion of the Constitution's meaning. 137 He suggested that the 
power to govern "may be the inevitable consequence of the right to 
acquire property." 138 He also once stated that "perhaps" the power 
to govern "necessarily" resulted "from the facts that it is not within 
the jurisdiction of any particular state, and is within the power and 
jurisdiction of the United States." 139 If the word "jurisdiction" be 
here given its usual meaning in the state papers of Marshall's time 
(and when in the House of Representatives he had written a report 
on a famous case that arose out of that very usage) the above state- 
ment is a petitio principii. But no matter what may have been in- 
tended, the Chief Justice added: "The right to govern, may be the 
inevitable consequence of the right to acquire" — which would be 
merely a repetition of the preceding quotation if, in that, "jurisdic- 
tion" be read as synonymous with physical control. And, finally, 
Marshall also recognized the rules-and-regulations clause as one source 
of the governmental power of Congress over the territories, 140 and we 

is? in House Doc. 509, 56 Cong. 2 Sess., The Insula?- Cases (1901), 1075 
pages, will be found a great collection of quotations from source materials 
and discussions thereof taken from the records, briefs, and arguments of 
counsel in those cases. 

H. C. Black, in his Handbook of American Constitutional Laiv (3d ed. 
1910), summarized the authorities thus: "In fact, the power cannot be de- 
rived from any narrow or technical interpretation of the Constitution. But 
it is necessary to recognize the fact that there is in this country a national 
sovereignty. That being conceded, it easily follows that the right to acquire 
territory is incidental to this sovereignty. It is, in effect, a resulting power, 
growing out of the aggregate of powers delegated to the national government 
by the constitution. And if a more positive justification is needed" it can 
be found, he thought, in the war and treaty powers — on which are always 
cited Amer. Insur. Co. v. Canter (1826), 1 Pet. (26 U.S.) 511; DeLima v. 
Bidwell (1900), 182 U.S. 1; Jones v. U.S. (1890), 137 U.S. 202; Shively v. 
Bowling (1893), 152 U.S. 1. 

Of course there is "a national sovereignty"; but Jefferson found it, under 
the Ninth and the Tenth Amendments, in the people of the United States 
so far as regarded holding foreign territory or forming states therefrom. 
Mr. Black's assumption that the federal state rnvst hold sovereignty is not sus- 
tainable by logic, but only by our history since 1803. 

138 Amer. Insur. Co. v. Canter (1826), 1 Pet. (26 U.S.) 511, 542-43. The 
same suggestion had been earlier made in Sere u. Pitot (1810), 6 Cranch 
(10 U.S.) 332, 336. See Late Corp. of Latter Day Saints (1S89), 136 U.S. 
1, 42. 

i3o Canter case, preceding note, at 542. See ante at notecall 75 seq. 

i*o iMd. Compare discussion of this case by Chief Justice Taney and 
Justice Curtis in 60 U.S. at 442-43 and 540-41 respectively. 



have seen that Madison mentioned no other. 141 As already stated, 
it has become increasingly common to interpret that clause as con- 
ferring broad governmental power. On the other hand Chief Justice 
Taney contended (1857) that it was not intended to confer any 
governmental power whatsoever. Said he : 

The words "needful rules and regulations" . . . are not words 
usually employed ... to give the powers of sovereignty or to establish 
a Government, or to authorize its establishment. . . . The words "rules 
and regulations" are usually employed in the Constitution in speaking 
of some particular power . . . and not . . . when granting general pow- 
ers of legislation. . . . And to construe the words ... as a general and 
unlimited grant of sovereignty over territories which the Government 
might afterwards acquire, is to use them in a sense and for a purpose 
for which they were not used in any other part of the instrument. 142 

Whether this contention rested on any convincing grounds of either 
logic or history will now be considered. 

Before doing so it may be remarked that as a matter of fact Con- 
gress had long before he spoke — indeed, before Marshall uttered any 
of the above suggestions — done things in control of persons within 
acquired territory which, seemingly, could be sustained as legal only 
by a power outside that to make rules and regulations respecting or- 
ganized territories. 143 


The rules-and-regulations clause, literally read, seems to refer to 
"territory" only as property, as Taney contended it did. In that case 
one could scarcely find in it a power to govern the inhabitants of 

141 Ante at notecall 92. 

"2 60 U.S. at 440; italics added. 

143 "The Sovereignty of the Federal Government extends to the entire 
limits of our territory. . . . There is a law of Congress to punish our citizens, 
for crimes committed in districts of country where there is no organized 
Government. Criminals are brought to certain Territories or States, desig- 
nated in the law, for punishment. Death has been inflicted in Arkansas 
and in Missouri, on individuals, for murders committed beyond the limit 
of any organized Territory or State" — -Justice McLean, 60 U.S. at 543. It is 
presumably to these cases to which Justice Catron referred (as decided by 
him on circuit), when supporting, in his opinion in Dred Scott v. Sandford, 
Congress' power (whatever its source) in the territories — 60 U.S. at 522-23. 
The cases fall within the political regulation of no organized territory; and 
are equally unexplainable as merely regulation of the "territory" (where 
the crime is either committed or tried) as soil; but can be explained, as he 
explained them, as an exercise over any and all territory of a sovereign 
power conferred by the rules-and-regulations clause. 



"territory." But recur to Madison's two motions in the Conven- 
tion. 144 Note that he made them as involving two distinct and separate 
powers. Note that in the rules-and-regulations sentence the first of 
Madison's motions was literally preserved, with an addition relating 
to non-landed property : "to dispose of . . . the territory or other prop- 
erty of the United States. ' ' Note that the words absent in his original 
motion — "and make all needful rules and regulations respecting" — 
can very readily be read as including a power "to institute tem- 
porary governments for new States," which last words constituted 
Madison's second motion. If in the Constitution there is any express 
grant of this last power, it was always admitted that such grant was 
by this rules-and-regulations clause. The power could, indeed, be 
found elsewhere by implication, being manifestly one of absolute 
necessity. But for that very reason, in the absence of any other pro- 
vision that could be regarded as an express grant, the rules-and-regu- 
lations clause has been naturally — and as time passed, more and more 
generally — so read. 

Some colonial history was involved in the use of the word ' ' regu- 
lations. " This ordinarily has a connotation, to us today, of detailed 
control under a general power or right. The colonies had long sub- 
mitted without protest before the Revolution to "regulations" of 
trade and manufactures which not only involved restraints but some- 
times the collection of imperial revenue. This made it difficult, when 
the Parliament proposed in 1767 to begin the collection of new duties 
on trade, to define the general right underlying the regulations 
against which no protests had been made. The colonists attempted 
a distinction between a right of Parliament to ' ' regulate ' ' and a right 
to "legislate." To find a logical basis for such a distinction was im- 
possible, for whatever the Parliament did by statute was necessarily 
legislation. That was, indeed, the fundamental argument of the 
British. "It has been urged with great vehemence against us," wrote 
John Dickinson in Letters from a Farmer, "and it seems to be thought 
their Fort by our adversaries, that a power of regulation is a power 
of legislation ; and .... It is therefore concluded that the colonies 
by acknowledging the power of regulation, acknowledged every other 
power." He could not deny that they had acknowledged regulation 
by legislation. His counter argument amounted to this : that a right 

i« Ante at notecall 122. 



to make mere regulations of trade was conceded, but not the right to 
make regulations that amounted to '"internal" taxation; for this 
amounted to control of internal government, and without holding the 
purse strings in that — Dickinson warned his compatriots — -"no free 
people ever existed, or can ever exist." 145 In short, they should 
repudiate any regulations which implied a right or a purpose that was 
essentially fiscal — or, perhaps, immediately political. As Professor 
McLaughlin emphasized many times, Dickinson was here grasping at 
distinctions between governmental powers which today seem quite 
simple to us in reading the Constitution but which were then only 
faintly discernible — as was more faintly still the federalism of which 
they are the indispensable basis — in British imperial administration. 

The terminology- involved in colonial controversies is perpetuated 
in the language of the Constitution. That adopted, as the substantive 
description of legislation, the very words — "rules" and "regulations" 
— which in earlier controversy the colonists had attempted to distin- 
guish from legislation. In Article I, Section 8 of that instrument, in 
which are enumerated most of the powers given to Congress, one finds 
powers to "regulate" or "make rules" concerning commerce, money, 
captures on land and water, naturalization and bankruptcy, the army 
and navy; 146 each a limited, but vast, subject of legislation. The 
power to control the subject matter is given as a right to make rules 

1*5 Letter No. IX, Political Writings (1814), 1:224. Dickinson admitted 
at the outset that Parliament could rightfully "regulate trade," but denied 
the right to "tax" — Letter No. II, ibid. 1: 151-64. The latter word, he said, 
"had obtained a national, parliamentary meaning, drawn from the principles 
of the Constitution, long before Englishmen thought of imposition of duties, 
for the regulation of trade" — 1: 176-77. This was the meaning the Congress 
had in mind in their resolutions adopted in New York; no tax without con- 
sent of those taxed, no tax on the colonies save by the colonial legislatures — 
1: 177-78. To tax is to take property. "External impositions, for the regu- 
lation of our trade, do not 'grant to his majesty the property of the colonies.' 
They only prevent the colonies acquiring property, in things not necessary, 
in a manner judged injurious to the welfare of the whole empire" — 1: 179. 
The logic here was better than the words found to express it. As John 
Marshall said, "The colonies had been long in the habit of submitting to 
duties laid by parliament on their trade, and had not generally distinguished 
between those which were imposed for the mere purpose of regulating com- 
merce, and this, which being also designed to raise a revenue, was, in truth, 
a real tax" — Life of George Washington (1805), 2: 76. 

i*6 Art. I, sec. 8, sub-sees. 3, 5, 11, 15 respectively. Similar illustrations 
are to be found in other state papers of the time. For example the Articles 
of Confederation (Art. 9) gave Congress the "power of . . . regulating the 
trade and managing all affairs with the Indians," and on Aug. 7, 1787 it 
passed "an Ordinance for the regulation of Indian Affairs." 



and regulations respecting it; these words are an adequate and very 
acceptable description of the details of management. The right then 
existing, and Congress being the legislative department of govern- 
ment, the right would necessarily be exercised by making laws ; that 
is, by legislation. t4T However, either the framers of the Constitution 
did not so reason or they indulged in tautology, for they followed its 
grants of specific powers with a general grant of power "to make all 
laws which shall be necessary and proper for carrying into execution 
the foregoing powers, and all other powers vested ... in the government 
of the United States, or in any department or officer thereof." 148 Now, 
all the above-indicated powers are in one sense political; but they 
relate only in a mediate or indirect manner to political rights or the 
organization of government. When, on the other hand, Congress was 
granted in the same section of the Constitution the power of "exclusive 
legislation" over any territory purchased from the states for the seat 
of the federal government, and for public buildings and military 
establishments elsewhere, 14 " this seems to have an implication of im- 
mediate and general governmental control. 

Thus, the language of the Constitution, as above stated, seems to 
reveal a slight influence of pre-Revolutionary controversy. Conse- 
quently, in the Dred Scott case Chief Justice Taney perhaps had a 
point: "rules and regulations" alone had perhaps not been gener- 
ally admitted to include regulations of basic political or governmental 
affairs. Still, the point is one of little weight. As a grant of power 
or right to control, the right to "make rules and regulations" is 
obviously, in logic, unlimited. Speculative comparisons with pre-Con- 
stitution polemics cannot affect the carefully chosen language of the 
Constitution. A concededly unlimited right to control the various mat- 

147 Justice Curtis, in his opinion in Dred Scott v. Sandford (1857) said 
of the rules-and-regulations clause: "But it must be remembered that this 
is a grant of power to Congress — that it is therefore necessarily a grant 
of power to legislate — and, certainly, rules and regulations respecting a 
particular subject, made by the legislative power of a country, can be nothing 
but laws" — 60 U.S. at 614. This is sound reasoning, but there was no need 
to resort to implication since the clause cited in the next note covered the 
case. That is, it covered the case provided the "rules and regulations" power 
was of a nature to require legislation for its execution; particularly if it 
was a power over the political or governmental affairs of territories gen- 
erally, as Curtis contended and Taney denied. 

lis Art. I, sec. 8, sub-sec. 18. 

i*o Ibid, sub-sec. 17. 



ters of vast governmental importance above specified was given Con- 
gress by using those very words. 

Whether basic political or governmental matters are in any case 
involved depends on the nature of the subject to be regulated. The 
power described by the words cannot be restricted. Its incidence can, 
however, be restricted by proving a limitation on the subject matter 
to which it is applicable, or of the time within which it is exercisable. 
This was the objective to which Chief Justice Taney's argument in the 
Dred Scott case was primarily' directed. In all cases the powers 
granted are to be executed by passing laws necessary and proper for 
the realization of the purposes intended. One essential question pre- 
sented to the Supreme Court in that case was : Is the power over "the 
territory . . . belonging to the United States" general or limited, as 
respects time and as respects subject matter? 

"We may begin by considering all conceivable constructions of the 
power to make rules and regulations. At least five possibilities are 
theoretically available. Legislation by Congress would be necessary 
merely to protect the public property, provide for surveys, and pro- 
vide for sales. In addition to such legislation, "necessarily associated 
with the disposition and sale of the lands, ' ' the establishment of terri- 
torial governments would require legislation of political character. 
Keeping in mind the distinction between enactments of these two types, 
it would be possible — First : to limit the power granted by the rules- 
ancl-regulations clause to regulations respecting a territory as landed 
property, making no distinction between it and the preceding power to 
"dispose of" public property save to restrict the latter exclusively 
to sales. This view leaves all poAver to govern territorial inhabitants 
to be derived by implication from some other express power. Second : 
following the reasoning of Justice McLean, everything might be de- 
duced from the power to "dispose of" the land. For there must be 
enough government — executive, legislative, and judicial — to protect 
land and original purchasers, physically and through enforcement of 
contracts. But why should anyone purchase land if not to live on it, 
or to resell to others who would live on it? — and so on indefinitely. 
Thus a settled order of society would be necessary, including legisla- 
tion by Congress binding on the. inhabitants of the territory — legisla- 
tion not confined in subject matter to the land as property. All this, 
however, could not well have been the intent of the Constitution's 



framers, for it would have made wholly unnecessary the rules-and- 
regulations clause. Third -. one could readily, by parity of reasoning, 
derive all power over the territory from the rules-and-regulations 
clause, both power to govern and power to dispose of the land. But 
such extension would even more plainly than under the last preceding 
construction violate the framers' intent. Fourth: the rules-and-regu- 
lations clause might be considered the source of all strictly political 
power in the government of the territories, leaving the "disposal' 7 
clause as the basis of all legislation regulating the survey, protection, 
and sale of the public lands. Fifth : one could regard the power to 
govern territorial inhabitants as deriving in part from the rules-and- 
regulations clause and in part, by implication, from other express 
clauses in the Constitution ; particularly, perhaps, from that of admit- 
ting new states. 

Illustrations of three of these views can readily be found. If one 
gives a literal meaning to words possibly unreflectively used, illustra- 
tions are abundant. Few of them merit attention. Justice Campbell, 
speaking in the Dred Scott case, concluded that the power conferred 
by the rules-and-regulations clause was "restricted to such adminis- 
trative and conservatory acts as are needful for the preservation of 
the public domain, and its preparation for sale or disposition"; 150 
and he might have cited, though he did not, a dictum of the Court 
twelve years earlier which declared that the clause authorized such 
legislation. This is illustrative of the first of the above views. It 
was also the view of Calhoun and of Attorney General Wirt in 1820. 
John Quincy Adams tells us that when President Monroe, in anticipa- 
tion of receiving from Congress the Missouri Compromise bill, re- 
quested of his cabinet members their written opinion of its constitu- 
tionality, Secretaries Calhoun and Crawford and Attorney General 
Wirt "insisted upon it" that the rules-and-regulations clause "had 
reference to it [the territory] only as land and conferred no authority 
to make rules binding on its inhabitants." Adams alone dissented, 
and reported the President as inclined to agree with him. 151 

The second and third views have probably never had any advo- 

150 60 U.S. at 514. The dictum of the Court was given in Pollard's 
Lessee v. Hagan (1S45), 44 U.S. 212, at 224; it was, that the regulations 
clause authorized "all laws necessary to secure the rights of the United 
States to the public lands, and to provide for their sale, and to protect them 
from taxation" — that is, by the Territories or States. 

ioi Memoirs, 5: 5, 8. 



cates. The broad scope of such possible constructions has however 
often been casually indicated. 

The fifth view is manifestly illogical. If the regulations clause 
authorizes any legislation whatever of a political character, it is idle 
to suggest any limitation upon it in view of the broad terms in which 
power is granted. Yet Madison expressed this view in 1819. "The 
terms of the grant, ' ' he wrote, ' ' tho ' of a ductile character, cannot well 
be extended beyond a power over the Territory as property, and a 
power to make the provisions really needful or necessary for the 
Gov.'t of Settlers until ripe for admission into the Union. ' ' The words 
"really needful or necessary" would certainly import a considerable 
restriction, but Madison gave no argument or evidence to support his 
opinion. He continued: "It may be inferred that Congress did not 
regard the interdict of slavery among the needful regulations contem- 
plated by the constitution." 152 Why so? The old Congress put the 
interdict into the Ordinance. The new Congress re-enacted that stat- 
ute in order that it might "continue to have full effect," — Madison 
and various other members of that Congress who had been members 
of the Federal Convention making no objection. Surely, then, "it may 
be inferred" — it must be inferred — that Congress did regard "the 
interdict of slavery among the needful regulations contemplated by 
the constitution." On this point one may well appeal from Madison 
at sixty-eight years of age, discomposed by the great Missouri debate, 
to Madison at thirty-five, interpreting the work of the Convention of 
which he had been the best informed and most efficient member. 

The fourth view is that which the courts, and students of our 
constitutional system, have increasingly tended to adopt. This was 
Madison's view when his work in the Federal Convention had just 
been completed. It will be remembered that in Number 38 of The 
Federalist, when defending the grants and distribution of powers in 
the new Constitution, he declared that "effective powers must either 
be granted to, or assumed by, the existing Congress ' ' of the Confedera- 
tion, and he gave an illustration ; namely, that in the matter of the 
western lands the absence from the Articles of Confederation of 
granted powers had put Congress under the necessity ' ' of overleaping 
their constitutional limits" in proceeding "to form new States, to 
erect temporary governments, . . . and to prescribe the conditions on 

152 Letter of Nov. 27, 1819, to R. Walsh— Writings (Hunt ed.), 9: 6. 



which such States shall be admitted into the Confederacy." This is 
the plainest possible implication that in Madison's opinion the Consti- 
tution granted these "effective powers" and granted them expressly; 
to deny that is to charge that Madison was disingenuous. And the 
Constitution did in fact expressly grant the power to govern territories 
and admit new states if the rules-and-regulations clause was intended 
to authorize the institution of the territorial governments. Moreover, 
in Number 43 of The Federalist, where he commented upon the grants 
of power to Congress seriatim, he first, referring to the power to admit 
new states, recalled his earlier reference to the inconvenience of the 
omission of this power from the Articles "and the assumption of 
power into which Congress have been led by it" ; and then, passing to 
the rules-and-regulations clause wrote : ' ' This is a power of very 
great importance, and required by considerations similar to those 
which show the propriety of the former." 153 It seems reasonable to 
say that if Madison had believed that under the Constitution the 
power to govern the inhabitants of a territory was to be taken as im- 
plied in the power to admit a state formed therefrom, it would have 
been impossible to describe the rules-and-regulations clause as granting 
a power of "very great" importance. In Number 43, therefore, he 
must again be understood as implying that the clause empowered Con- 
gress to establish territorial governments. 

The fourth construction of the clause is also unquestionably that 
intended by G-ouverneur Morris, who wrote it. And since it was he to 
whom the task of the Committee of Style was primarily entrusted by 
his fellow committeemen, and Madison, one of them, conceded that to 
him "the finish given to the Style and arrangement" of the Constitu- 
tion "fairly belongs," 154 it seems certain that the phrasing of the pro- 
vision was pondered, and well adapted to express his purposes. These 
were, it seems likely, three. It was necessary to find words satisfac- 
tory, as a compromise, to persons holding conflicting views (1) respect- 
ing the relation desirable between the Union and territory already 
acquired, and (2) respecting the proper treatment of any foreign 

153 Both of these essays have often been cited; but nowhere, seemingly, 
have the special purposes of Madison in No. 38 been noted, nor the relevancy 
of both with respect to the matter here in question. 

15 * Letter of April 8, 1831, to Jared Sparks — Farrand, Federal Conven- 
tion, 3: 499. On the extent to which James Wilson participated in the final 
revision there is a note in C. Warren, Congress, the Constitution, and the 
Supreme Court (2d ed. 1935), 8 n. 



territory subsequently acquired. That the conflicts on both these 
points were vital will appear clear later. Those on the first dictated 
the abandonment of Jefferson 's ordinance of 1784, and fixed the char- 
acter of the Ordinance of 1787 155 — which was drafted while the Consti- 
tution was being framed. Morris's final purpose, (3) it is suggested, 
at least with reference to territory of the second type, was to slip into 
the Constitution here, precisely as he elsewhere did (as will be seen in 
a moment) in the provision for the admission of new states, his own 
views regarding foreign territory subsequently acquired. The gen- 
erality of " rules-and-regulations " was, as already seen, 156 consistent 
with all other grants of power, and at the same time was ideal for 
Morris' purposes of compromise. 

The opinion of Chief Justice Taney in the Dred Scott case takes 
us back to the first of the above possible views respecting the regula- 
tions clause. His arguments were three : (1) that the clause "applied 
only to the property which the States held in common at the time"; 
(2) that it conveyed merely a "power which was necessarily associated 
with the disposition and sale of the lands"; and (3) that "whatever 
construction may now [1857] be given to these words . . . they are not 
the words usually employed ... in giving supreme power of legisla- 
tion." 157 

The light already thrown on the last of these contentions, 158 is 
sufficient to justify a statement that it was of little force. It was a 
borrowing from the distortions of pre-Revolutionary controversy, ap- 
plied (and illogically applied) to the Constitution for purposes of 
special pleading. That the Constitution did expressly grant to Con- 
gress exclusive and unlimited powers over various subjects of para- 
mount national interest, each of these powers necessarily a power of 
legislation, and its content in each case described as a right to make 
rules and regulations respecting it, were most assuredly facts per- 
fectly clear to the mind of the Chief Justice. 

As regards the other two contentions he had no historical evidence 
whatever in support of them ; his views were based solely upon analy- 

155 Post cclxxxii seq. (particularly ccxcii-vii) and cccxxiv seq. (particu- 
larly cccliv-lxi). 

156 Compare ante cvii-ix with post cxxv-ix, clvii-ix. 

1 57 60 U.S. at 436-37; italics added. Exactly the same view was presented 
by Senator George F. Hoar of Massachusetts in argument on the Philippines, 
Jan. 9, 1899— Cong. Record, 55 Cong. 3 Sess., vol. 32: 497 (col. 1). 

158 Particularly by the very language of the Constitution — ante, cvii-viii. 



sis of the clause's phraseology. 159 However, contrary opinions must 
rest upon the same basis. It is not practicable to discuss the two argu- 
ments separately. The Chief Justice did not so discuss them ; he stated 
them separately but he gave no evidence that was only pertinent to 
them separably ; he deduced both as conclusions from his general read- 
ing of the Constitution. 

As regarded national chattel property of the type taken over by 
the Union from the Confederation — ships, arms, and munitions of war 
— but subsequently acquired, "no one, it is believed," he said, "would 

iso On the first point he merely repeated assertions. "That provision . . . 
is confined, and was intended to be confined to the territory which at that 
time belonged to or was claimed by, the United States, and was within their 
boundaries as settled by the treaty with Great Britian, and can have no 
influence upon a territory afterwards acquired from a foreign government. 
It was a special provision for a known and particular territory, and to meet 
a present emergency, and nothing more" — 60 U.S. at 432. "It applied only 
to the property which the States held in common at that time, and has no 
reference whatever to any territory or other property which the new 
sovereignty might afterward itself acquire. ... It does not speak 
of any territory, nor of Territories, but uses language which, 
according to its legitimate meaning, points to a particular thing. The 
power is given in relation only to the territory of the United States — 
that is, to a territory then in existence, and then known or claimed as the 
territory of the United States" — ibid. 436-37; some italics added. Again, 
he said: "The necessity of this special provision" — the rules-and-regulations 
clause — "in relation to property and the rights of property held in common 
by the confederated States, is illustrated by the first clause of the sixth 
article. This clause provides that 'all debts, contracts, and engagements 
entered into before the adoption of this Constitution, shall be as valid 
against the United States under this Government as under the Confedera- 
tion.' This provision, like the one under consideration," — that is, the rules- 
and-regulations clause — "was indispensable if the new Constitution was 
adopted. The new Government was not a mere change in a dynasty, or in 
form of government, leaving the nation or sovereignty the same, and clothed 
with all the rights, and bound by all the obligations of the preceding one. 
But, when the present United States came into existence ... it was a 
new political body, a new nation. ... It took nothing by succession from 
the Confederation. It had no right, as its successor, to any property or rights 
of property which it had acquired, and was not liable for any of its obliga- 
tions. . . . [Hence] special provisions were dispensable to transfer to the 
new Government the property and rights which at that time they [the con- 
federated States] held in common; and at the same time to authorize it to 
. . . pay the common debt which they had contracted. . . . The clause in 
relation to the territory and other property of the United States provided 
for the first, and the clause last quoted" — that is, the prior-engagements 
clause — "provided for the other" — ibid. 441; italics added. The first clause 
could transfer nothing, and the second authorize nothing — see post n. 170. 

The fact that the new Union was created to arise only concurrently 
with the extinction of the old, and was its "successor" only in the sense 
of "following after," is not always remembered; see the extraordinary re- 
marks of Justice Sutherland in United States v. Curtiss- Wright (1936), 299 
U. S. 304, at 315-18. 



think a moment of deriving the power of Congress to make needful 
rules and regulations in relation to property of this kind from this 
clause of the Constitution." Consequently, "upon any fair construc- 
tion ' ' the operation of the clause should be confined, as respected such 
property, to the property which was about to be transferred from the 
old Union to the new. "And if this be true as to this property, it must 
be equally true and limited as to the territory. ' nen 

The argument is both ingenious and specious. "No one" is a 
very broad term. Of an ordinary citizen the statement would doubt- 
less be true ; the power to regulate would seem to him to be implicit in 
the fact of ownership — but, nota bene, equally as respected personal 
property then owned or thereafter acquired. Each of the Chief 
Justice's other propositions is vitiated by assumptions. Since the 
framers did in fact insert a power that "no one" would think neces- 
sary as respected personal property of the type in question, it is merely 
a self-serving assumption to declare that "fair" construction must 
confine that provision to property of that type then owned. To de- 
clare, next, that "if this be so" — which it was not, except by that as- 
sumption — "it must be equally true and [the provision equally] lim- 
ited as to the territorj^" (landed property), was merely a second self- 
serving assumption. As a matter of fact nothing in legal history is 
plainer than that men have always thought differently of movable and 
immovable property. And both of these double-tongued propositions 
were dependent on a third self-serving assumption more egregious and 
factitious than the other two ; namely, that a Chief Justice, and the 
framers of a Constitution who were wisely intent upon creating a gov- 
ernment of enumerated and strictly limited powers, could or should 
have thought as an ordinary citizen would think. In fact, however, 
as we have just seen, the care taken by the framers in stating explicitly 
each power given to the new federal government was so great as to 
involve in the conferment of every power granted in the eighth section 
of the first article a defect very rare in the Constitution — redundancy. 
An ordinary citizen would have thought that giving Congress a power 
to rule and regulate this or that was itself a sufficient grant of power 
to legislate on the subject; but not so the framers. An ordinary citizen 
might well think that ownership of propeiiy would necessarily include 
powers to legislate regarding it ; still, one should not assume that the 

160 60 U.S. at 436-37. 



framers would or should have thought thus. Their duty, in law and 
as they saw it, was to put beyond doubt the exact powers granted; 161 
so they granted each power of legislation necessary to carry out the 
powers already granted ; and even then much was left, as the future 
proved, to implication. Again it is difficult to believe that Chief Jus- 
tice Taney could have been oblivious to the distinctions just made. 

There are other objections to his view. He was not justified, when 
construing the regulations clause, which is the second sub-section of 
Article IV, in totally disregarding the first sub-section, which provides 
for the admission of new states. Such a separation could not, by him, 
be logically made. For he tied together power to acquire territory 
and power to admit new states — limiting the existence of the power 
to the presence of that end. 162 And he further insisted that power to 
acquire includes large powers to govern. 163 Consequently, in inter- 
preting the power to govern he could not consistently wholly disregard 
his interpretation of the power to admit ; — but he nevertheless did that, 
expressly. 164 Now, nobody had ever suggested that the sub-section on 
new states was inapplicable to the territory later ceded by North Caro- 
lina and Georgia, the cession of which was in 1787 only confidently an- 
ticipated. If that clause was applicable to after-acquired territory, 
why was not the rules-and-regulations clause equally applicable to the 
same after-acquired territory? And why not, then, to after-acquired 
territory in general? 

The Chief Justice evaded these questions in a very illogical man- 
ner. The constitutional proAdsion under examination ends with a 
saving of "any claims of the United States, or of any particular 
State." 165 This, said he (and nobody has ever expressed a contrary 
opinion), referred to the claims of the respective parties to the west- 
ern lands of North Carolina and Georgia, "not yet ceded by the 
States" named. 100 On the preceding page of his opinion, moreover. 

lei Ante xcvi, ci. 

162 Ante n. 117. 

163 Ante cii-iii. 

164 60 U.S. at 446-47. 

165 At notecall 127. 

166 60 U.S. at 437. The Confederation had bound itself respecting this 
unceded territory by its compact with Virginia — ante at notecall 53. But 
that was no compact with North Carolina and Georgia, and much less did 
it effect a cession, although Chief Justice Taney here illogically treated it as 
if it did. Neither did it constitute an express grant of power to perform the 
obligation assumed — compare ante lxxv, xciv. 



speaking of the regulations clause, he first stated that its purpose was 
only "to transfer to the new Government property then held in com- 
mon by the States" (he did not mean, literally, that the clause was 
only a conveyance), and a few lines farther on stated that it was 
"given in relation only to the territory of the United States — that is, 
to a territory then in existence, and then known or claimed as the ter- 
ritory of the United States. ' ' 16T Here, then, he ignored the fact that 
the Southwest had not been ceded, and as a territory of the Union was 
only claimed, but did not exist. He did this to indicate that neverthe- 
less the regulations clause was applicable to that territory when ac- 
quired. Yet, ignoring this, he immediately based upon the reserved- 
claims provision an argument that denied the possibility of this con- 
struction just given by him to the regulations clause. He said, namely : 

When the latter provision [the reserved-claims clause] related 
so obviously to the unappropriated lands not yet ceded by the States, 
and the first clause [the regulations clause] makes provision for those 
then actually ceded, it is impossible, by any just rule of construction, 
to make the first provision general, and extend it to all territories, 
which the Federal Government might in any way afterwards acquire, 
when the latter is plainly and unequivocally confined to a particular 
territory, and involved in the same dispute, [between individual and 
confederated states] and depended upon the same principle. 168 

Just what idea was intended to be conveyed by the last five 
words of this passage cannot be said. It is true that the prior-engage- 
ments clause of Article VI, and the new-states clause and regulations 
clause and reserved-claims clause of Article III, were the solution, all 
taken together, of one great dispute. It is not clear how they depended 
"upon the same principle," and certainly the Chief Justice did not 
construe them on a common principle of consistent reasoning. He set 
no limit to the operation of the new-states clause upon after-acquired 
territory save that territory could only be acquired for the purpose 
of its ultimate admission as a state ; 169 he did not question its applica- 
bility, therefore, to the unceded Southwest. As regards the rules-and- 

167 Ibid, at 436. The territory in the Southwest was not yet acquired 
unless one assumes that the Confederation's claim thereto under the treaty 
of peace was superior to that made by the states, and Taney's words negative 
this view. See ante lxi-ii. That "transfer" imporperly implies that the regu- 
lations clause itself effected a conveyance, see post n. 170. 

168 60 U.S. at 437-38; italics added. 

169 ibid, 446-49. 



regulations clause, at one moment he conceded its applicability to that 
unceded domestic territory — the only territory which he and many 
others thought could be constitutionally acquired. At another moment 
he denied any applicability of the clause to territory not already owned 
in 1787 by the confederated states. Indeed, in one passage (but 
surely by mere inadvertence) he made it nothing but a conveyance of 
property, with no efficacy thereafter. 170 But since in this last case, 
regardless of that slip, he was seeking the meaning of the regulations 
clause by comparing the provisions of two Articles, III a,nd VI, it 
seems indeed strange that he should have failed to compare for that 
purpose the different sections of Article III. 

On the whole, there seems again to be nothing better in the Chief 
Justice's reasoning than an assumption of a desired conclusion, but- 
tressed by an assertion that any other construction of the Constitu- 
tion was "impossible" and a further statement that his own argument 
was "irresistible." 

Even though the reserved-claims clause did refer to particular 
territory, it was a reference to territory to be acquired in the future. 
Moreover, it covered all later-acquired territory to which reference 
was either discreet or necessary. Hence, the new-states clause and the 
rules-and-regulations clause being both unlimited in form, there is no 
reason why the restriction of the reserved-claims clause (explainable 
by reasons peculiar to itself) should be permitted in any way to re- 
strain the meaning of these clauses that preceded it. 

There are still other objections to the Chief Justice's view, and 
weightier ones, than these criticisms of his exegesis of the Constitu- 
tion's text. 

The first reason is based upon the circumstances that surrounded 
the framers of the Constitution. It was thus stated by Justice Curtis : 

i7o The reserved-claims clause is quoted ante at notecall 127; the prior- 
engagements clause is quoted ante n. 159. Taney's statements in n. 159 re- 
specting the latter clause and the rules-and-regulations clause are, if read 
literally, manifest absurdities. The territory of the old Union was transferred 
to the new only as stated post cxx. The regulations clause gave power to deal 
with it. The prior-engagements clause imposed on the new Union the obliga- 
tion of the old respecting that territory, and the powers necessary for their 
performance were conferred in sec. 8 of Art. I of the Constitution. To con- 
strue the clause as itself a grant of power was therefore unnecessary, and also 
(ante lxxiv-v, lxxxvii) wholly illogical. (If Taney's phrases "the first" and 
"the other" be reversed the absurdity of his propositions is lessened, since the 
regulations clause did empower Congress "to dispose of" the territory, and so 
to pay debts.) 



"There is very strong reason to believe . . . that the necessity for a 
competent grant of power to hold, dispose of, and govern territory, 
ceded and expected to he ceded, could not have escaped the attention 
of those who framed or adopted the Constitution ; and that if it did not 
escape their attention, it could not fail to be adequately provided 
for." 171 The clause in question is in form a provision adequate for 
that purpose. The Chief Justice's reasons for restricting it in mean- 
ing are not convincing. 

The second reason is that, so far as concerns the intent of Gouv- 
erneur Morris, unquestionably the clause was intended to cover after- 
acquired property, as will shortly appear. 

The Chief Justice maintained, also, that his narrow construc- 
tion 172 of the first clause was confirmed ' ' by the manner in which the 
present Government of the United States dealt with the subject as 
soon as it came into existence. " " It is obvious, ' ' said he, 

from the law they passed to carry into effect the principles and pro- 
visions of the ordinance, that they regarded it as the act of the States 
done in the exercise of their legitimate powers at the time. The new 
Government took the territory as it found it, and in the condition in 
which it was transferred, and did not attempt to undo anything that 
had been done. And, among the earliest laws passed under the new 
Government is one reviving the ordinance of 1787, which had become 
inoperative and a nullity upon the adoption of the Constitution. This 
law introduces no new form or principles for the government, but . . . 
proceeds to make only those rules and regulations which were needful 
to adopt it to the new Government, into whose hands the power had 
fallen. 173 It appears, therefore, that this Congress regarded the 
purposes to which the land in this Territory was to be applied, and 
the form of government and principles of jurisprudence which were to 
prevail there while it remained in the Territorial state, as already 
determined on by the States when they had full power and right to 
make the decision ; and that the new Government . . . ought to carry 
substantially into effect the plans and, principles which had been prev- 
iously adopted by the States, and which [that is, action by the Govern- 

1^160 U. S. at 618; italics added. 

172 The same view had been expressed on the Circuit Court by Justice 
Johnson in Amer. Insur. Co. v. Canter (1828), 1 Pet. (26 U.S.) 511, footnote 
on 517. His decision was affirmed by the Supreme Court, 1 Pet. (26 U.S.) 
511, but the question, as Taney says, was there not decided (cf. ibid. 542) 
"because a decision upon it was not required by the case before the Court" — 
Dred Scott v. Sanford (1857), 19 How. (60 U.S.) 383, 442-44. 

"3 Act of Aug. 7, 1789 — ?7. 8. Stat, at Large. 1: 50-53; reprinted from 
original, with corrections, in Carter, Territorial Payers, 2: 203. 



ment] no doubt the States anticipated when they surrendered their 
power to the new Government. 174 

The new Union "took" the territory from the old through the 
Constitution ; by it the people created a new Union, and destroyed the 
old; officials of the one received from those of the other custody of 
Union property; but there was no cession by one government to the 
other, and no compacts between them regarding it. 175 But, by the 
Constitution the new Union assumed "all ... engagements entered 
into" by the old. The question then is: "What had been done by the 

Taney was here arguing the narrow meaning of the rules-and- 
regulations clause. So far as he could show that the Ordinance, when 
passed in 1787, was the act of the sovereign states, as such, he would 
correspondingly narrow its legislative content and equally restrict 
the field left open to legislation by the new Congress following 
1789. If all the provisions of the Ordinance were compacts between 
Virginia and the Confederation, then the new Union must have taken 
the Northwest Territory and its governmental system "as it found" 
them, and could not have undone anything that had been done. At 
least as respects the Northwest Territory, the operation of the rules- 
and-regulations clause would have been exceedingly restricted. The 
narrowness of that clause's application in adjusting the Ordinance 
to the governmental framework of the new Union in 1789 170 would 
have illustrated its inherent limitations, and could not be explained as 
indicative merely of a willingness to leave substantively unaltered an 
instrument found to be in that respect satisfactory. 

The vice in this argument is that it was not ''the Ordinance" that 
was the act of the sovereign states. It was, as his language just pre- 
ceding the passage above quoted clearly shows, certain interstate 

17*60 U.S. at 438-39; italics added. Compare the following discussion 
with post clxxxix-xcii. 

175 There was a "giving" by the old Union and a "taking" by the new 
in a physical sense only. In a legal sense, it would seem, the people of the 
states that composed the Confederation destroyed the title to the territory 
that was in that Union and created a new title in the new Union, by virtue of 
approval in the several state conventions of the prior-engagements clause of 
the Constitution. See ante n. 170. 

176 Namely: officials of the Territory to be appointed by the "President" 
instead of (the old) "Congress"; removals from office, ditto; reports by the 
governor, ditto; the secretary of the Territory to serve as governor in case 
of the latter's removal, resignation, or absence from the Territory. 



compacts preceding and underlying that enactment that were their 
acts; 177 and, as he likewise elsewhere showed, it was only these com- 
pacts that were made binding on the new Union by the Constitution. 178 
It was only within their limits that the status of the territory, de jure, 
under the Confederation, was involved in the fact that the new Union 
took the territory from the old, and in the manner of its taking. 

It is certain that the members of Congress who were familiar 
with the years-long negotiations between Virginia and her sister states 
should have understood correctly the nature of the agreements finally 
made between them, and the distinction between those compacts and 
the provisions of the Ordinance. If they did, then the members of the 
First Congress likewise presumably understood how far that instru- 
ment was in fact "the act of the States done in the exercise of their 
legitimate powers at the time." But no matter what they may have 
thought on the subject it is clear that all the detailed governmental 
provisions of the Ordinance were mere legislation, and their continu- 
ance rested in the discretion of the new government. Likewise, the 
Ordinance's declarations of high political policy in the "compact" 
articles, so far as they were not echoes of the Constitution, 170 had no 
higher character, as will be shown in the next section of this introduc- 
tion. The Chief Justice could not have forgotten that he himself had 
pronounced "many" of the Ordinance's provisions to be contrary to 
the Constitution. 180 If in fact it had been the act of the sovereign 

i" They are stated above as they stand in the acts of Virginia and of 
Congress — ante xci; for their detailed statement by those parties see citations 
ante nn. 62, 63. 

178 60 U.S. at 435, 441; the passage on 441 is quoted ante in n. 159. It 
has often been assumed that this prior-engagements clause referred to 
financial obligations of the Confederation only. The explanation of this is 
that the purpose of the clause was instantaneously executed, that no occa- 
sion arose to interpret it in the early years of the Union, and that its sig- 
nificance was forgotten. 

St. George Tucker, in his edition of Blackstone (1803), suggested that 
the six "compact" articles of the Ordinance of 1787 were confirmed by the 
constitutional clause under discussion ("These articles appear to have been 
confirmed," etc.) — Vol. 1, part 1, Appendix at 279. Senator Benton, who 
studied Tucker's edition as a beginner in law, quoted him in his Historical 
and Legal Examination of the Dred Scott Case, at 52, but made the whole 
Ordinance an "engagement" that was so confirmed — ibid. 50-53; and Benton, 
Thirty Years' View (1856), 2: 759. This led to other more objectionable 
views — post ccxvi-vii, ccxx-xxi. 

179 post clxxxi-ii and nn. 

iso "it is impossible to look at the six articles" — the "compact" articles 
—"which are supposed, in the argument, to be still in force, without seeing 



states, all of its provisions would have been compacts between each of 
them and all the others — that is, the Confederation; all would have 
been confirmed by the prior-engagements clause of the Constitution ; 
none could have been contrary to it. 181 The history of the Ordinance 
in the time of Taney's leadership of the Supreme Court reveals the 
absurdity of this last view and the correctness of the other. 182 

In short, there is nothing whatever "in the manner in which the 
present Government of the United States dealt with the subject as 
soon as it came into existence" which to the slightest extent supports 
Taney's attempt to explain how the original Ordinance could stand 
in its entirety, after adoption of the Constitution, as the act of the 
sovereign members of the Confederation, and the new Congress never- 
theless lack power to act similarly with respect to other territories. 
The passage just commented upon is not a coherent and positive argu- 
ment ; it can fairly be characterized as a series of allusive suggestions, 
each capable of, and indeed inviting, misconstruction. The only legal 
judgments that re-enactment of the Ordinance could, and did, imply 
were: first, that, as the Chief Justice had just before said, "as this 
league of States would, upon the adoption of the new Government, 
cease to have any power over the territory, and the ordinance ... be 
incapable of execution, and a mere nullity," it was necessary "to give 
the new Government sufficient power to enable it to carry into effect" 
the objects for which the territory had been ceded; 183 and second, that 
the First Congress, including twenty-two members who had aided in 
framing the Constitution, assumed that its power thereunder was suffi- 
cient to justif}^ re-enactment of the Ordinance with no changes of 

at once that many of the provisions contained in them are inconsistent with 
the present Constitution" — Stracler v. Graham (1850), 51 U.S. 82, at 95. 

181 Had the Ordinance been of the nature supposed, it would necessarily, 
as supposed by its eulogists, have settled absolutely the problem of slavery 
in the Northwest, and therefore also, as a matter of practical political fact, 
as respected all new states whose creation was foreseeable, since no affirm- 
ance of slavery in the Southwest was necessary and no disaffirmance of it 
therein could be anticipated. And the Constitution would then have affirmed 
the Ordinance in toto as engagements entered into by the Confederation 
(Art. VI, sec. 1); which was never directly claimed by anybody, although 
implicit in the language of various commentators. 

Senator Benton reached the same result, as respects the Ordinance's 
supposed abolition of slavery by his extraordinary theory of the source of 
congressional power stated ante at notecall 121; see his Dred Scott Case, 
34-35, 37. 

182 Compare post cxxx, ccxv-xxii, ccxlvii-viii. 

183 60 U.S. at 435. 



substance in its provisions. The last argument of the Chief Justice 
thus appears to have no solidity. 

Having removed the confusion respecting the rules-and-regula- 
tions clause which was involved in Taney's reference to the re-enact- 
ment of the original Ordinance by Congress in 1789, it seems desirable 
to remove further confusion created by disregard of the true relation 
between the original Ordinance and the Constitution. 

It is a fact that the expiring Congress of the Confederation acted 
in the matter of the Ordinance as if it possessed powers co-ordinate 
with those of the Federal Convention. 184 No less a claim than that was 
involved in the enactment of its ostensible compact clauses ; and if 
that enactment, in its entirety, had been the act of the sovereign con- 
federated states, as Chief Justice Taney's territorial arguments re- 
quired, the claim would have been fully justified. Essentially the 
same ideas as those above expressed by him were expressed by Justice 
Campbell. Said he : 

The consent of all the States represented in Congress, the con- 
sent of the Legislature of Virginia, the consent of the inhabitants of 
the Territory, all concur to support the authority of this enactment. 
It is apparent, in the frame of the Constitution, that the Convention 
recognized its validity, and adjusted parts of their work with reference 
to it. The granting of authority to admit new States into the Union, 
the omission to provide distinctly for Territorial Governments, and the 
restriction of the clause limiting the foreign slave trade to States then 
existing, which might not [themselves] prohibit it, show that they have 
regarded this Territory as provided with a Government, and organized 
permanently with a restriction on the subject of slavery. Justice 
Chase . . . says .of the government before, and it is in some measure 
true during the Confederation, that "the powers of Congress origi- 
nated from necessity, and arose out of and were only limited by events, 
or, in other words they were revolutionary in their very nature. Then- 
extent depended upon the exigencies and necessities of public 
affairs"; 185 and there is only one ride of construction, in regard to the 
acts done, which will fully support them, viz. : that the powers actually 
exercised were rightfully exercised, wherever they were supported by 
the implied sanction of the State Legislatures, and by the ratifications 
of the people. 186 

is4 Compare E. C. Burnett, The Continental Congress, 690-93; Benton, 
Dred Scott Case, 38, 91. 

issin Ware v. Hylton (1796), 3 U.S. (3 Dall.) 199, 232. 
iso 60 U.S. at 504. 



Whatever force this reasoning had rests on the assumption in 
the first and last sentences that mere ''consent" could give the Ordi- 
nance compact character. The Ordinance would be, as Taney said, "a 
mere nullity" when the Confederation expired, unless it was (as he also 
very inconsistently implied it to be) in every line and letter an inter- 
state compact. It would then have been validated in toto under the 
prior-engagements clause (instead of the simple compacts underlying 
it), and the Convention could have "recognized, and adjusted parts 
of their work with reference to it, ' ' thus making it in effect a part of 
the Constitution. But, of course, there is no shadow of support for 
this theory. It has been shown that the Ordinance did not have the 
character supposed, and it is a question merely of fact. 

But now consider the actual compacts, underlying the Ordinance, 
that were made valid against the new Union. The sovereign states 
having empowered the Confederation to acquire territory, organize 
governments therein, and admit new states therein formed, and the 
old Congress having actually exercised only the first two powers — an 
ordinary citizen might have supposed that the third power, to admit 
new states, was the only one for which provision was necessary in 
the new Constitution, as in fact it was the only one expressly granted. 
But how could any delegates have reasoned thus when the Convention 
was enumerating the powers of the new federal government f Or any 
lawyer reason so, retrospectively? Existence or nonexistence of any 
power in, and exercise or nonexercise of any power by, the Confedera- 
tion was totally irrelevant to the question of its existence in the new 
government under the Constitution. 

Of what force, then, are the opening and concluding sentences of 
Justice Campbell's theory? Manifestly none. Mere nonprotestant 
"consent" of all the parties named could give the Ordinance no 
authority beyond the interstate compacts that were its basis ; beyond 
them, there was no formal action by the states. The conditions upon 
which Virginia ceded the Northwest Avere enumerated in her legisla- 
tive act and were re-enumerated and explicitly accepted for the Con- 
federation by the delegates of the other contracting states by a similar 
act (in Congress), and nothing in the Ordinance that lay outside the 
terms of the compact thus made can be viewed as extending that 
compact merely because the excess was not denounced and repudiated 
by parties who had no power either to enact or repeal it. It was 



wholly acceptable as mere legislation subject to alteration and abroga- 
tion by Congress. The theory of Justice Campbell reads like an ap- 
peal to public sentiment in the decade of squatter-sovereignty. Were 
it soundj it goes, as already said, too far; it would give every provi- 
sion of the Ordinance a super-Constitutional status. 187 None knew 
better than Justice Campbell that the Ordinance had never been so 
regarded in the Supreme Court. 

Thus, there was no legal relation whatever between Ordinance 
and Constitution, and therefore no substance— only confusion — in the 
argument of Justice Campbell. The Ordinance was merely a statute. 
Its only relation to the Constitution, aside from that of being con- 
stitutional or unconstitutional, was that some mutual influence of 
opinion existed between the framers of the two instruments. This 
was inevitable, since they were at work at the same time, faced the 
same problems, to some extent had a common membership, and clearly 
had some knowledge of each other's acts and attitudes. 

It may again be repeated that there was really nothing peculiar 
in the phraseology "rules and regulations." It was the form em- 
ployed in granting to Congress several of its greatest powers. Each 
specific power given it was one to make "rules and regulations," and 
in the form of "all laws necessary and proper" for the stated purpose. 
Variation existed only in the subject matters of which control was 
given ; not in the fullness of the power given, nor in the words by 
which the power was given. We have concluded that the subject mat- 
ter was not the Northwest Territory — one territory — but territories 
generally ; the government of territorial inhabitants as well as the con- 
trol of the territory as property. The scope of permissible rules and 
regulations would therefore, prima facie, be very great. 

We have seen that the first bulwark behind which Chief Justice 
Taney took his position was the contention that "rules and regula- 
tions" connoted the details of managing territory as property. The 
last bulwark was a contention that "whatever construction may now 
[1857] be given to these words," it must exclude a government unre- 
strained by the restrictions to which congressional power, outside the 
territories, was admittedly subject; that is, arbitrary or despotic gov- 
ernment. But it is perfectly clear from what has gone before that 
although, in employing the phrase ' ' rules and regulations, ' ' the drafts- 

i8f Ante n. 181. 



man of the constitutional provision, Gouverneur Morris, was merely 
adhering to the Constitution's standard form in granting powers, he 
• had a special reason for doing so; namely, that in his opinion it would 
permit arbitrary imperial forms of government, at least over any 
foreign territory subsequently acquired. 

Doubtless other members of the Convention than Hamilton and 
Morris shared the view that the eventual acquisition of at least all 
foreign territory east of the Mississippi — possibly some farther south — 
was inevitable. 188 Doubtless a large number would have shared the 
opinion, as did Chief Justice Taney 180 and a long list of other Ameri- 
cans up to 1898, that Congress could not permanently govern a terri- 
tory as such ; that it could govern it only antecedently to and as a 
preparation for admission as a state. 190 It followed, necessarily, that 
under this view territory could be acquired solely for the purpose of 
later organization into states. Jefferson, in 1803, saw no constitutional 
difficulty in acquiring Louisiana, but its incorporation into the Union 
was, he thought, "a question of expediency," and he thought it "safer 
not to admit the enlargement of the Union" (that is, by the incorpora- 
tion of foreign territory, for all domestic territory had already been 
incorported) "but by amendment of the Constitution." In other 
words, the power to admit new states was in his opinion limited to 
those "which should be formed out of the territory [of the confed- 
erated states], for which, and under whose authority alone, they were 
then acting." 191 Morris saw no limitation on our ambitions respecting 

188 Hamilton's ambitions in 1797 when he was head of the army and 
expecting war with France and Spain were very great. Speaking, seemingly, 
of any and all territory of France and Spain in America coveted by the 
United States, he wrote: "I have been long in the habit of considering the 
acquisition of those countries as essential to the permanency of the Union." 
Just what countries were coveted is not apparent, but he entertained ideas 
of organizing revolts south of Panama — J. T. Morse, Life of Alexander 
Hamilton (1876), 2: 267-68. Five years later he wrote to Pickering: "I 
have always held that the unity of our empire and the best interests of our 
nation require that we shall annex to the United States all the territory east 
of the Mississippi, New Orleans included" — Dec. 29, • 1802, Works (Lodge 
ed.), 10: 445. The number of leading men holding this latter opinion was 
probably very considerable. 

iso 60 U.S. at 446-48. 

100 Senator Hoar, discussing in 1902 the disposition of the Philippines, 
has been quoted as saying: "I have been unable to find a single reputable 
authority more than twelve months old, for the power claimed for Congress 
to govern dependent nations or territories not expected to become States." 
I have failed to find this in the Congressional Record. 

i9i Letters to Gallatin, Jan. 1803, and to W. C. Nicholas. Sept. 7, 1803— 
Writings (Ford ed.), 8: 241, 247; Gallatin, Writings (Adams ed.). 1: 114. 



foreign territory save divine interposition. To him, the idea that its 
acquisition should be subjected to restraints imposed by a goal of ulti- 
mate statehood in a democratic Union would never have occurred. As 
regarded the permanent government of such territory he had likewise 
no hesitations. In a letter of later years he wrote : 

I am very certain that I had it not in contemplation to insert a 
decree de coercende imperio in the Constitution of America ... I 
knew as well then [1787] as I do now, that all North America must 
at length be annexed to us. Happy, indeed, if the lust of dominion 
stop there. It would therefore have been perfectly Utopian to oppose 
a paper restriction to the violence of popular government. 192 

And in reply to an inquiry "whether the Congress can admit as a new 
State, territory, which did not belong to the United States when the 
Constitution was made, ' ' he replied : 

In my opinion they cannot. I always thought that, when we 
should acquire Canada and Louisiana, it would be proper to govern 
them as provinces, and allow them no voice in our councils. In word- 
ing the third section of the fourth article, I went as far as circum- 
stances would' permit to establish the exclusion. Candor obliges me to 
add my belief, that, had it been more pointedly expressed, a strong 
opposition would have been made. 103 

These oft-quoted letters compel several conclusions. One is that 
the rules-and-regulations clause, far from referring as Chief Justice 
Taney thought solely to the territory northwest (and southwest) of the 
Ohio, was understood by its draftsman to cover, and in a peculiar 
sense refer to, foreign territory subsequently acquired. 104 

Another conclusion is that neither that clause nor the reserved- 
claims clause was intended to be a grant of power to acquire territory. 

192 Letter to H. W. Livingston. Nov. 25, 1803 — Farrand, Federal Con- 
vention, 3: 401. 

1 93 Ibid. 404; italics added. In a letter to Timothy Pickering in 1814, 
Morris wrote: "That instrument was written by the fingers, which write 
this letter. Having rejected redundant and equivocal terms, I believed it 
as clear as our language would permit; excepting, nevertheless, a part of 
what relates to the judiciary. On that subject, conflicting opinions had been 
maintained with so much professional astuteness, that it became necessary 
to select phrases, which expressing my own notions would not alarm others, 
nor shock their self-love, and to the best of my recollection, this was the 
only part which passed without cavil" — Dec. 22, 1814, Farrand, Federal 
Convention, 3: 420. 

i9i One could possibly make a stronger argument that it was intended 
to refer solely to future acquired territory than Taney made for the view 
that it applied solely to territory already acquired. 



In any explicit grant some delegates would certainly have demanded 
some restriction ; either based on the distinction between domestic and 
foreign territory or involving the ultimate denial or grant of state- 
hood. Hence, since in Morris' opinion any restriction would be in- 
effective and, if it caused debate on the distinctions named, undesir- 
able, the only way to avoid those issues was to employ words so vague 
as not even to suggest by implication any enabling content. In this he 
was, it would seem, completely successful. 

As for the government of territory acquired, since in his opinion 
foreign territory could not be formed into states, all the phraseology 
associated in debates of the Confederation era with the Xorthwest 
Territory ("organization" or "creation" or "erection" of "govern- 
ments" or "states") was therefore also to be avoided in order not to 
raise that issue. This objective, too, was attained, and Morris' 
private opinion respecting the proper treatment of foreign territory 
was also perfectly expressed, by the phrase "rules and regulations." 

Exactly the same is to be said of the provision that "new States 
may be admitted by the Congress into this Union." This clause is 
part of the section of which, as a whole, Morris stated that he had 
gone "as far as circumstances would permit to establish the exclusion" 
from statehood of acquired foreign territory. As already noted, 
debate in the Convention was devoted wholly to other clauses involving 
the problems of Kentucky, Maine, and Vermont. 195 There seems to 
have been no mention of the more fundamental problems presented 
in 1803 by the annexation of Louisiana. 1 ™ In drafting his compromise 

in 5 See Ante xciv-v, xcviii. 

if fi The Louisiana treaty provided for the organization of new states in 
the ceded territory. On Nov. 4, 1803, Rufus King wrote to T. Pickering: "Con- 
gress may admit new States, but can the Executive by treaty admit them. 
or, what is equivalent, enter into engagements binding Congress to do so? 
As by the Louisiana Treaty, the ceded territory must be formed into States. 
& admitted into the Union, is it understood that Congress can annex any 
condition to their admission?" Farrand, Federal Convention, 3: 399. 

Thus, by 1803 the three fundamental problems that have caused so much 
debate were all plainly in view: the uncertain line between executive and 
congressional power, the question whether foreign territory may or must 
be admitted to the Union, and the question whether Congress can create 
inequalities between the states by imposing different conditions upon them 
when admitted. The last has been answered negatively — post clxii-iii. 
Toward solution of the first problem little progress has been made. As for 
the second, though practice has tended toward the recognition of "unin- 
corporated territory," it has not done more than accentuate the question 
whether permanence of such a status is consistent with our ideals or our 



provision Morris was successful in avoiding words that would raise 
any question respecting foreign territory. 

An attempt has been made in the preceding pages to show that the 
rules-and-regulations clause was in the usual phraseology by which 
various of the greatest powers held by Congress were granted in the 
Constitution; that the right of control over the subject matter of the 
power — "territory or other property of the United States" — which is 
given by the clause is to be taken, prima facie, as virtually unlimited, 
since that is manifestly true of the power granted to Congress by the 
same words, in the same section of the Constitution, over various 
other subjects; that the power itself being in terms unrestricted, its 
incidence can be restricted only by a narrow construction of the 
above description of the subject matter to which it is applicable or of 
the time within which it was intended to be exercisable; that the at- 
tempt of Chief Justice Taney to prove its limitation to territory simply 
as property, and to property already owned by the Confederation in 
1787, was unsupported as to both points by any direct historical evi- 
dence, and as an argument was illogical and full of self-serving as- 
sumptions; that, on the contrary, the view that the clause was intended 
by its draftsman as a general grant of power to govern the inhabitants 
of territories is amply proved, and that Madison so understood it 
in 1788 is fairly to be inferred from his arguments in The Federalist; 
that Chief Justice Taney's further argument that the Ordinance of 
1787 was the act of the sovereign confederated states, binding on the 
new Union and Congress — which if true would have left only a very 
narrow field within which Congress could act under the clause — was 
wholly fallacious, the actual compacts between Virginia and the Con- 
federation being quite plain in the state papers of the time, and con- 
fined to specific agreements which preceded and underlay the Ordi- 
nance as its basis, but did not include any of its provisions ; that al- 
though the Congress of 1787 labeled various of those provisions "com- 
pacts," they necessarily remained mere legislation, nor was their 
nature in any wise altered by the co-ordination which to some extent 
is apparent in the work of drafting the Ordinance and the Constitu- 
tion ; and, finally, that at least in the intent of the draftsman of the 
rules-and-regulations clause the powers it conferred were judged suffi- 
ciently broad to permit Congress to govern imperially, as perpetual de- 
pendencies, any foreign territory that might be acquired by the Union. 



We now pass to a very different question with respect to the 
legislative power of Congress in the territories. The preceding dis- 
cussion has dealt with one constitutional clause as the source of such 
power. But regardless of the source, the existence of a large measure 
of control was never questioned. The question next raised is whether 
there are constitutional limits to that control. 


This was the problem before the Supreme Court in Dred Scott v. 
Sandford (1857). Stated in general terms the question Avas one as to 
the possession by Congress of a power to regulate the rights of person 
or property of territorial inhabitants; more specifically, whether it 
could prohibit slavery in a territory carved out of the Louisiana Pur- 
chase. Legally stated this involved the question whether it could 
alter the property rights of the master of an African slave taken by 
(or for) him into the territory. 

The Northwest Territory and Ordinance of 1787 were not directly 
involved; but they were much discussed, since slavery had there sup- 
posedly been excluded either by interstate compacts or by legislation. 
In earlier cases which were quoted with approval by the Court in the 
Dred Scott ease, it had been held, quite soundly, that the supposed 
compact articles of the Ordinance were not compacts ; 107 — although 
there were still dissenters from that view, in and outside the Court. 198 
Hence, if slavery had been excluded, it was by mere legislation. In 
the Dred Scott case the Court held that Congress had no such legisla- 
tive power. Whether that decision was sound will now be considered. 

Seven years before the decision in the Dred Scott case it had been 
decided in Strader v. Graham (1850) that no matter what might be the 

1117 Post ccxv-xviii, ccxxi-ii. 

i' IN Justice Catron, in his opinion in Dred Scott v. Sandford (1S57), 60 
U.S. at 523. said: "As to the Northwest Territory. Virginia had the right 
to abolish slavery there;" — but she could not have done so irrevocably by 
a mere vote of her legislature — "and she did so agree in 17S7, with the other 
States in Congress . . . by assenting to and adopting the ordinance of 17S7." 
Only on an assumption that all the state delegates acted under instructions 
to bind their states by compact could the vote on the Ordinance have more 
than a legislative effect. But Justice Catron had absolute abolition in mind. 

Thomas Hart Benton, in his review of the Dred Scott case, also declared 
that the Ordinance "settled" the question of slavery in the Northwest 
Territory — ante n. 181. 



effect upon a slave's status of residence within the Northwest Terri- 
tory (either while the Ordinance was in effect or after a prohibition 
of slavery by the constitution of free states organized within that 
Territory)', if he thereafter became a resident of a slaveholding state 
his status would again be subject to change by decision of the latter. 
It might, out of comity, recognize a free status, assuming such to have 
been acquired; or it might refuse to recognize it. 1 "" The Supreme Court 
might simply have followed this decision in the Dred Scott case, al- 
though there were reasons of procedural propriety for not doing so. 
It chose not to evade political and constitutional problems by so doing. 
In the latter case it made three decisions. 20 " Six of the nine mem- 
bers held that a Negro descended of African ancestors imported and 
sold as slaves (and this may be assumed true of -all Negroes then in 
the country) could not become a citizen of the United States. The 
same majority held that the Missouri Compromise — which ostensibly 
abolished slavery in that portion of the Louisiana Purchase north of 
36°30', where Dred Scott had resided — was void, because Congress 
had no power to exclude slavery from the territories. 2 " 1 Finally, after 

i'- 1 " Strader v. Graham (1850), 51 U. S. (10 How.) 82. 

200 Dred Scott v. Sand ord (1857). 60 U.S. (19 How.) 393-633. His- 
torians are interested in what the judges said, and not in the question 
whether, under the established practice of the Court, each spoke on a par- 
ticular question judicially — so as make any opinion in which a majority 
concurred a true holding or decision, and so a precedent. In these pages 
technicalities of pleading and practice are ignored, and views expressed by 
a majority are called "decisions." The scholar and lawyer who argued 
before the Court the constitutionality of the Compromise act, later wrote: 
"If ... a majority of the Judges of the Supreme Court can render a judg- 
ment ordering a case to he remanded to a Circuit Court, and there to he 
dismissed for a want of jurisdiction, which three of that majority [of 6] 
declare was apparent on a plea in abatement, and these three can yet go on 
... to decide a question" — that of the constitutionality of the Compromise — 
"involved in a subsequent plea to the merits, then this case is a judicial 
precedent against the validity of the Missouri Compromise" — George Ticknor 
Curtis, The Just Supremacy of Congress oyer the Territories (1859), 42 
(App. A, 38-42: "Note en the Dred Scott Case"); italics added. After all, 
a majority of the Supreme Court thought it permissible under the Court's 
practice to do these things. Charles Warren deals with the case, in his 
Supreme Court in United States History (1926, 2: eh. 26), popularly; but, 
as a lawyer, says that "six of the judges . . . concurred in holding, not only 
that a negro could not be a citizen of the United States, but also that Con- 
gress had no power to exclude slavery from the Territories" — 2: 300. 

20i Dred Scott resided at Fort Snelling, west of the Mississippi in what 
is now Minnesota. The Ordinance of 1787 (1789) was extended in 1836 to 
that portion of the Territory of Wisconsin which included the site of Fort 
Snelling. But since that place was not part of the Northwest Territory 
ceded by Virginia, the compacts be+ween her and the Confederation (assumed 



thus disposing of the substance of the case by these two distinct inter- 
pretations of the federal Constitution, the Court, by a majority of 
seven to two, pronounced consideration of substantive issues unneces- 
sary by holding, in accord with Strader v. Graham, that Dfed's status 
depended solely on state powers and state law; and since, by decision 
of the Supreme Court of Missouri rendered before institution of the 
ease in the federal courts, Dred Scott was a slave, and therefore could 
not be a citizen of Missouri, there was no jurisdiction over the case 
in the federal courts as a controversy between citizens of different 

An adequate discussion of the law of status and property in- 
volved in the case, of the legal points presented by it, and of the argu- 
ments of the judges upon them, is here quite impossible. Only the 
second of the Court's three decisions is here of direct interest. It was 
necessary first to ascertain the source of any power in Congress to 
govern the territories, and thereafter to define the limitations exist- 
ing upon its exercise. The general right to govern acquired territory 
was qualified, as respected the territory ceded by Virginia and to a 
lesser extent as respected that purchased from France, by the com- 
pacts made as part of the price of acquisition. Only the latter, how- 
ever, were necessarily involved at all in the case. 

The essential problem was whether, the acts of Congress within 

by the new Union under the prior-engagements clause of the Constitution), 
even had they covered the abolition of slavery in the ceded territory, could 
not have given vitality to an extension of the Ordinance beyond the limits 
of the Virginia cession. 

Under Chief Justice Taney's acquiescence-in-the-Ordinance theory of the 
compacts between Virginia and the Confederation (ante lxxxvii seq.). and the 
assumption of their obligations in the same way by the new Union, one must 
say that the sovereign which ceded the territory impliedly granted the power 
to abolish slavery. Under the writer's view of the compacts, although there 
was none that dealt explicitly with the abolition of slavery, the power to 
abolish it (or later re-establish it) was in the Confederation by virtue of the 
compact empowering it to govern the territory, with no limitation thereon 
stated, and was conferred upon the new Congress under the rules-and- 
regulations clause. References by the Court to the Ordinance were, however, 
necessarily dictum in any case, since Fort Snalling was outside the territory 
affected by the compact. 

As respects territory outside Virginia's grant the Court denied in the 
Dred Scott case any power in the new Union, or at least in it when acting 
through Congress, to abolish slavery in the territories. The writer finds it 
present in Union and Congress as above. Justice Catron, dissenting from 
the majority on this point, took the same view as respected the power, but 
held its exercise barred by a condition supposedly set by France in her 
cession of Louisiana— 60 U.S. at 524 seq. 



the territories are subject to constitutional restrictions under the first 
nine amendments that admittedly control it within the limits of the 

We have seen that Chief Justice Taney contended that the rules- 
and-regulations clause power was restricted to territory owned when 
the Constitution was framed. Another view voiced in the opinions was 
that the rules and regulations authorized by it were not political regu- 
lations constituting government, but regulations of the territory as 
mere landed property. One of the justices sitting in Dred Scott v. 
Sandford adhered to both of these views ; 2 " 2 Chief Justice Taney con- 
tended for the first, and leaned sympathetically toward the second 
as far as possible in limiting the content of the power, but did not 
adopt it; 2 "" and Thomas Hart Benton, in his analysis of the Court's 
decision, accepted the second view but rejected the first. The reasons 
given by the Chief Justice have b^en considered, and his conclusion 
rejected; they were effectively answered by Justice Curtis in his dis- 
senting opinion. 2 " 4 Those given by Senator Benton are wholly unac- 

-"- Justice Campbell, ante at notecall 150. 

203 Ante cv, cxiii seq. 

204 60 U.S. at 604-14. His argument may be recapitulated as follows: 
Before the Constitution was framed, territory and jurisdiction thereover had 
already been ceded by four states: while its framers were in session the 
claims of South Carolina were ceded; and the great cessions later made by 
North Carolina and Georgia were confidently expected. The Ordinance of 
1787, passed while the Constitution was in process of drafting, provided for 
the government of the territory northwest of the Ohio River. Of course it 
was known to the members of the Federal Convention; in fact, a draft of it 
in nearly final form was published in a Philade'phia newspaper. It must 
have been manifest to everybody that the Constitution must provide for the 
continuance thereunder of the government thus initiated in the Northwest 
Territory. Provision was made for the admission of new states. The pro- 
vision was admittedly made to cover both the Northwest Territory and the 
lands whose cession by North Carolina and Georgia was imminent; — as 
well as Maine and Vermont. It seems perfectly clear "that the necessity 
for a competent grant of power to hold, dispose of, and govern territory, 
ceded and expected to be ceded, could not have escaped the attention of those 
who framed or adopted the Constitution; and that if it did not escape their 
attention, it could not fail to be adequately provided for" — 60 U.S. at 608. 
Immediately following the provision for admission of new states, in the 
same section of the Constitution, came the grant to Congress of power to 
make "all needful rules and regulations respecting the territory or other 
property belonging to the United States." How, under the circumstances, 
could that mean "now belonging"? There was a necessity that it should 
apply to the territory whose cession was imminent; there was no reason 
why it should not apply to any territory later acquired. 

We know that its draftsman very specially meant it to apply to foreign 
territories later acquired, and before 1857 six states formed from such terri- 
tory had been admitted to the Union, thus making impractical all discussion 
of the matter. 



ceptable. 205 Tlie position taken by the Chief Justice was not indis- 
pensable to his decision on the issue of congressional power. It did, 
however, lessen the obstacles in the way of that decision. It made 
the rules-and-regulations clause, and its very broad language, wholly 
inapplicable to the territory acquired in 1803. 

He argued also, as we have seen, that the language of the clause 
was not that in which general legislative powers would be conferred. 
But the answer of Justice Curtis (doubtless urged in conference) was 

'-'"•"' "The history of the times," according to him, "shows to be an error" 
the view that the rules-and-regnlations clause authorized "political action 
of Congress over the Territories" — Dred Scott Case, 51. But the looseness, in 
places, of his reasoning and of his language greatly lessens the value of his 
arguments. The book was largely a compilation from the Thirty Years' Vieiv. 
So far as it involved original writing, as it did on the matters here involved, 
it was written under circumstances that excuse defects. 

For two reasons much of what he wrote was confused. (1) He habitu- 
ally wrote without proper distinction between the old Congress and the 
Confederation, the new Congress and the new Union: "The Congress of 
the Confederation made the engagement," — that is, the compacts consum- 
mated by Virginia's cession — "and executed it in the ordinance of 1787; the 
Constitution devolved the engagement upon the new Congress, which executed 
it in the same way" — ibid. 35; that is, by re-enacting the Ordinance. And 
(2), he put the Ordinance on complete equality, as respects legal status, 
with the Constitution. For example, as follows: "The ordinance provided 
only for the government of the Territories — not for the disposal of the lands 
within them; and hence the propriety of the clause in the Constitution to 
authorize Congress to dispose of the territory, i.e. the land; and to make 
needful rules and regulations respecting it" — Hid. 37; italics added. And again 
he wrote of the rules-and-regu'ations clause: "Neither that clause, nor any 
other in the Constitution, applied to the government of the Territory, because 
that had been provided for in the ordinance; and the ordinance itself had 
been provided for in the assumption by the new Federal Government of 
all the engagements entered into by the old Continental Congress" — ibid. 
37; italics added. (As in the first example, the distinction between Congress 
and Union is ignored; the engagements were not of the old Congress, but of 
the Confederation; the Ordinance was not an engagement, nor any of its 
provisions.) And this last might seem why he wrote, only two pages before, 
that "There was no authority in the Constitution to adopt it, yet Congress 
adopted it" — were this not immediately followed by statements that there 
jvas authority to adopt it, namely under the prior-engagements clause — ibid. 
35. The true engagements were the three compacts just specified by him on 
p. 36; as Benton himself correctly stated more than once. "The engagement 
was — first, to dispose of the ceded land, — secondly, to build up political 
communities upon it. And the Constitution provided for the fulfilment of 
both branches of the engagement" (though he says twice above only for the 
first), "and the adoption of the ordinance fulfilled the political part of the 
engagement, — building up political communities on the Territory; and the 
clause in the Constitution for disposing of the Territory, and other property 
of the United States, followed by acts of Congress to sell the public land, 
fulfilled the other" — ibid. 50; italics added, and similarly 35. These last 
passages cited conceded that the Ordinance was only an act in performance 
of obligations assumed. 



conclusive: "that this is a grant of power to the Congress — that it is 
therefore necessarily a grant of power to legislate — and, certainly, 
rules and regulations respecting a particular subject, made by the 
legislative power of a country, can be nothing but laws. Nor do the 
particular terms employed . . . tend in any degree to restrict this 
legislative power. Power granted to a Legislature to make all needful 
rules and regulations respecting the territory, is a power to pass all 
needful laws respecting it." 2 " G 

Now, whatever might be the source of the power of Congress, the 
fact was perfectly clear that Congress, in legislating for different terri- 
tories, had repeatedly assumed that it possessed power either to pro- 
hibit or not to prohibit slavery therein. It had sometimes "extended" 
the Ordinance of 1787 with its prohibitory article to new territories. 2 " 7 
It had sometimes extended it without that article. 20S 

Thomas Hart Benton, in a book written to refute the Dred Scott 
decision on the unconstitutionality of the Missouri Compromise, elab- 
orated some of the preceding instances and added others indicative of 
the opinion entertained on the cpiestion by Congress, as shown by 
legislative action from 1789 up to the Dred Scott decision. Ten 
years before the date at which the Constitution empowered Congress 
to prohibit the importation of slaves from foreign countries into the 
states (1808) it had prohibited their importation into Mississippi 
Territory. 209 Six years later it wholly prohibited their importation 
into Orleans Territory from abroad; prohibited importation from the 
original states of slaves imported thereinto since 1798, unless intro- 
duced by an owner moving into the territory "for actual settlement" ; 
and for violation of these provisions ?et the penalty of a fine and the 

206 60 U.S. at 614. 

207 Justice Curtis enumerated notable instances — ibid. 618-19. Of this 
first class were the extensions to Indiana Territory (1800), Michigan Terri- 
tory (1805), Illinois Territory (1809), the Territory of Wisconsin (1836), 
the Territory of Iowa (1838), and the Territory of Oregon (1846). The last 
three cases (the first of the three only to a slight extent) involved territory 
to which the Ordinance was, until the extension, wholly unrelated. 

2os These were likewise enumerated by Justice Curtis — ibid. They were 
the cases of the Southwest Territory (1790), the Mississippi Territory (1798) 
— involving territory ceded by North Carolina and Georgia; Orleans Territory 
and District of Louisiana (1804), Orleans Territory (1805), Missouri Territory 
(1812) — involving portions of the Louisiana Purchase; and the Territory of 
Florida (1822) — involving the Spanish purchase. 

209 Benton, Dred Scott Case, 47-4S; sec. 7 of act of April 7, 1798— Carter, 
Territorial Papers, 5: 21. 



emancipation of the slaves. 21 " In 1806 a bill to prohibit the introduc- 
tion of slaves, generally, into the Mississippi Territory and the Terri- 
tory of Orleans was not reached for final action. But it was treated 
as ordinary legislation ; no distinction was made between the territory 
long within the limits of the states and that acquired from France ; 
and again the question of constitutionality did not appear.' 211 When, 
in 1819, it was moved in Congress to abolish slavery in Arkansas Terri- 
tory — to prohibit the future introduction of slaves, and to emancipate 
at the age of twenty-five slave children born therein — Senator Benton 
states that "no one" challenged the proposal as unconstitutional. It 
was debated solely on grounds of expediency and with reference to 
the terms of the treaty with France ; although two future justices of 
the Supreme Court (Philip P. Barbour and Henry Baldwin) were 
members of the House, in which one of the two provisions of the bill 
was lost by onhy one vote and the other by two votes (not theirs). 212 
!n the same year, as respects the Missouri debate, no one, according 
to Benton, challenged the constitutional power of Congress to pro- 
hibit the further admission of slaves into territories west of the Missis- 
sippi. "Of the forty-two who voted against the Compromise, there 
was not one who stated a constitutional objection. " 2ia 

We have earlier seen that when President Monroe in 1820 re- 
quested the written opinions of the members of his cabinet on the 
questions whether Congress could constitutionally prohibit slavery in 
a territory, and whether if it be "forever'' prohibited that would bind 

2io Benton, Dred Scott Case, 61-65; sec. 10 of act of March 26, 1804, for 
the organization of Orleans Territory and the District of Louisiana — Carter, 
Territorial Papers. 9: 209. In this same act Congress authorized the terri- 
torial governor and judges of Indiana Territory to act as a legislature for 
the District of Louisiana — sec. 12. Benton says they were authorized "to 
administer the ordinances of '87 in that upper half of Louisiana" — Dred 
Scott Case, 68-69. This is true only in the sense that, since they were au- 
thorized to establish inferior courts and "to make all laws which they may 
deem conducive to the good government of the inhabitants," conceivably, 
they might have enacted a law prohibiting slavery. In fact proslavery senti- 
ment was there very strong; many slaveholders had migrated there from 
the Illinois Country — F. S. Philbrick, The Laws of Indiana Territory. 1801- 
1809 (I.H.C. 21) xx-xxi, xxxv and n. 4, liv, lxxv, cxxxiii-cxxxiv, ccxviii and n. 1, 
ccxxi. There was a movement to join the western part of Indiana with the 
District of Louisiana, in which move the large slaveholders of the former 
were prominent — see Carter, Territorial Papers. 7: index, s. v. "Louisiana. 
Upper" and "Louisiana District." In fact, as Mr. Carter says, one law 
passed by the Indiana officials was a slave code. 

^ii Benton, Dred Scott Case. 48-49. 

212 ibid. 79-84. 

213 Hid. 89-95. 



a state therefrom created, they unanimously answered the first ques- 
tion in the affirmative (Calhoun being- one of them) ; and the second 
question (Secretary Adams dissenting) in the negative. 214 

In 1845, when Texas was admitted and sanction given for the 
creation therefrom of additional states, it was provided that slavery 
should not exist in any such state north of the Missouri Compromise 
line ; — that is, that line was recognized and given further extension 
westward. 215 

In the great debates of 1848 — first over the organization of 
Oregon, and then over a proposed conglomerate disposal of all the 
territory ceded by Mexico — new developments appeared. 210 Reverdy 
Johnson, a great lawj'er, added his opinion that Congress could con- 
stitutionally bar slavery in the territories. 217 The compact articles 
of the Ordinance of 1787 were extended in 1848 to Oregon. 218 Calhoun, 
despite his vote when secretary of war in Monroe's cabinet, now for 
the first time denied the power of Congress. In 1847 he had given 
voice to the theory that because the Constitution recognized property 
in slaves, an}- slaveholder could under its protection take slaves into 
a territory as representative of his state, the equality of which with 
northern states would otherwise be denied. 211 ' In 1848 he again voiced 
the doctrine of the se/-/-extension of the Constitution over the terri- 
tories, — though at the same time the proslavery party were endeavor- 
ing to effect such extension by statute 220 — and added (though of this 
he was not the original author) the proposal to submit to the Supreme 
Court of the United States, by allowing appeals thereto from terri- 
torial courts, the issue of constitutional power. 221 Finally, in the 
compromise bill fathered by Clay in 1850 provision was made for the 
extension of the "Missouri Compromise Line" to the Pacific Ocean. 
It did not pass, but many leading southern senators voted for it, and 

-i+lbid. 9G-100. Madison, writing in 1819, was of the same, undoubtedly 
correct, opinion that any power over slavery was "obviously limited to a 
Territory whilst remaining in that character as distinct from that of a 
State"— letter of Nov. 27 to R. Walsh, Writings (Hunt ed.) 9: 6. 

sis ibid. 101-2. 

216 ibid. 106-8, 113-20. 

sit Ibid. 108. 

2i8 Ante n. 207— sec. 14 of act of Aug. 14, 1848, U. 8. Stat, at Large, 9: 329. 

2i» Benton, Dred Scott Case, 18 n. See Benton's exposure of Calhoun's 
inconsistencies — Dred Scott Case, 97-100, 114-20. 

220 ibid. 12-23, 29, 118-20, 131-39. 

221 ibid. 26 n. 



some very able southern lawyers such as Senator Berrien did not 
challenge it on constitutional grounds. 222 

As respects the power of Congress to regulate or exclude slavery 
(and so as respects the contention that this power was limited by con- 
stitutional restrictions on its powers within the states that allegedly 
applied equally to the territories), there can be no doubt whatever 
that the Court's decision in Dred Scott v. Sandt'ord was, as Benton 
concluded, in conflict ' ' with the uniform action of all the departments 
of the Federal Government from its foundation" to the time when he 
wrote. It abrogated "the Missouri Compromise (which saved the 
Union) " and abrogated "squatter sovereignty (which killed the com- 
promise) " ; and did this by a decision of six to three on grounds which 
one of the six wholly ignored, one wholly repudiated, and others of the 
six qualified. 223 Still, it must be admitted that recognition of the 
theories it repudiated, though consistent and continuous as respected 
the executive and legislative departments, rested — so far as the judi- 
ciary was concerned — on decisions of inferior courts, with no more 
than dicta or doubtful decisions in the Supreme Court. 224 That Court 
had opportunity for the first time in the Dred Scott case to decide 
directly upon the powers of Congress. All three of the issues which 
it decided were, legally speaking, properly before it and, legally 
speaking, there was no impropriety in deciding them ; indeed, as the 
Chief Justice said, it was the duty of the Court to decide them. 

Nevertheless the questions involved in the first two decisions were 
essentially political, and in fair discretion the Court could have 
avoided their utterance ; the first by not resorting to excessively nar- 
row pleading, and the second either by following Strader v. Graham, 
as already said, 225 or by merely acquiescing in the long-continued atti- 
tude of the other departments of the government. The Court did not 
elect to follow the way that discretion would have dictated. Possibly 
because a tribunal predominantly of southern members felt itself to 
be a protector of southern interests where the law was unclear, it 
elected to erect a legal bar to popular decision of the political issues 

222 IJ)id. 111-13. 

223 Uriel. 121, 123, 124-25. 

224 Including circuit courts of the United States. Compare remarks of 
Justice Catron in 60 U.S. at 519-23; and the antagonistic interpretations of 
Amer. Insur. Co. v. Canter (1828), 26 U.S. (1 Pet.) 511 by Chief Justice 
Taney in 60 U.S. at 442-46 and Justice Curtis, Ibid, at 613. 

^-s Ante cxxx-xxxi. 



involved. In order better to understand the divergent opinions of its 
motives entertained by its defenders and detractors, it is desirable to 
note the manner in which it proceeded. Tt made certain choices in 
framing the case for discussion, and the arguments by which its con- 
clusions were supported depended in large degree on these choices. 
This will be here pointed out only as respects the decision on the Mis- 
souri Compromise. 

The general nature of the restriction to which, in Taney's judg- 
ment, congressional power in the territories was subject was made 
abundantly clear in his opinion. C4overnment of a territory existed 
"to protect the citizens of the United States who should migrate to 
the territory, in their rights of person and of property." If, said he, 
the regulations clause were construed to give Congress "a despotic and 
unlimited power over persons and property, such as the confederated 
States might exercise in their common property, it would be difficult 
to account for the phraseology used, when compared with other grants 
of power." 220 However, we have seen that they were in fact, in vari- 
ous instances, obviously identical. 

But all this was vague. It was essential to point to constitutional 
provisions which constituted a concrete basis for the contention that 
the restraints just indicated actually existed. Up to this point, then, 
what was the situation ? It was admirably stated by Senator Benton : 

There being [by the holding of the Court] no power in Congress, 
or the Territorial Legislature to legislate upon slavery, the whole sub- 
ject is left to the Constitution and the State law! that law which 
cannot cross the State line ! and that Constitution which gives pro- 
tection to slave property but in one instance, and that only in States, 
not in Territories — the single instance of recovering runaways. The 
Constitution protect slave property in a Territory ! when by that 
instrument a runaway from a Territory or into the Territory, cannot 
be reclaimed. Beautiful Constitutional protection that ! only one 
clause under it to protect slave property, and that limited, in express 
words, to fugitives between State and State ! and but one clause in 
it to protect the master against his slaves, and that limited to States ! 
And but one clause in it to tax slaves as property, and that limited 
to States ! and but one clause in it to give a cpialified representation 
to Congress, and that limited to States. 227 

Assume, then, that one desired to challenge the constitutional 

226 60 U.S. at 435, 439. 

227 Benton, Drccl Scott Case, 19-20. 



power of Congress to act as it had so long acted, with the general 
acquiescence, of the executive and of the federal judiciary save the 
Supreme Court. Could the challenge be aided by assuming the action 
of Congress to have been taken under one source of constitutional 
power rather than under another? The answer is that as a matter of 
strategy a great deal depended on the source selected. Having led the 
Court to hold that the rules-and-regulations clause did not apply, and 
having thus escaped the dangers of its loose phraseology, it was neces- 
sary for Taney to derive the power to govern territories from some 
one of the Constitution's provisions which conferred powers to acquire 
and hold territory. For good reasons there were no such explicit pro- 
visions,--" but more than one in which the grant of power to do those 
things was implicit. To have chosen the vague and emergency powers 
to make war and peace, for support in an argument to restrict the 
powers of the federal government, would obviously have been unwise. 
The Chief Justice chose the power to admit new states. 

He began with a misleading appeal to Madison, who had attacked 
implied powers, as having warned against dangers inherent in con- 
gressional government of the territories ; 220 this, of course, by way of 

228 Ante xcv seq. 

--■' He referred to Madison's discussion in The Federalist (No. 38) of the 
acquisition of territory by the old Congress, referring to it as a usurpation 
of power; although it has been shown above that on either one of two theories, 
one of them Chief Justice Taney's, it was not — ante lxxxiv-xc. He misrepre- 
sented Madison's position in two ways. "He speaks," said the Chief Justice, 
"of the acquisition of the Northwestern Territory . . . and the establish- 
ment of a Government there, as an exercise of power not warranted by the 
Articles of Confederation, and dangerous to the liberties of the people. And 
he urges the adoption of the Constitution as a security and safeguard against 
such an exercise of power" — 60 U.S. at 447. It was not the acquisition of 
the territory, nor was it the establishment of government therein, that he 
pronounced dangerous; it was the necessity of resorting to implied powers 
to accomplish these indispensable ends, that Madison attacked as dangerous: 
not the power, nor the exercise of the power, but such a mode of acquiring 
the power. The reference to Madison is understandable only if one interprets 
Madison's remarks to mean that territorial government is "dangerous to 
the liberties of the people" — therefore the power to govern should be re- 
duced; as Taney was endeavorine; to reduce them — first by eliminating the 
"all needful rules-and-regulations" clause, secondly by imposing on the new- 
states clause constitutional restrictions protective of personal and property 
rights. On the other hand, to a reader who correctly understands Madison's 
remarks as applying only to the danger of resorting to implied powers in a 
case so vital as the establishment of territorial governments, Taney's refer- 
ence to those remarks must seem extremely careless. For taking what 
Madison said in No. 38 in conjunction with what he said in No. 43. it is clear 
that Madison found an express power in the Constitution — namely, the rules- 
and-regulations clause. See ante lxxxiv-v and nn. 91, 92. Taney must have 



justification for narrowing governmental power as far as possible. He 
then proceeded as follows (constantly reiterating, it will be noted, the 
general restriction which he assumed to exist) : 

We do not mean, however, to question the power of Congress in 
this respect. The power to expand the territory of the United States 
by the admission of new States is plainly given. . . .-'■'■" It is acquired 
to become a State, and not to be held as a colony and governed by Con- 
gress with absolute authority .... whatever the political department 
of the Government shall recognise as within the limits of the I'nited 
States, the judicial department is also bound to recognise, and to 
administer in it the laws of the United States, so far as they apply, 
and to maintain in the Territory the authority and rights of the 
Government, and also the personal rights and rights of property of 
individual citizens, as-secured by the Constitution. All we mean to 
say on this point is, that, as there is no express regulation in the Con- 
stitution defining the power which the General Government may 
exercise over the person or property of a citizen in a Territory thus 
acquired, the Court must necessarily look to the provisions and prin- 
ciples of the Constitution and its distribution of powers, for the rules 
and principles by which its decision must be governed. 

Taking this rule to guide us, it may be safely assumed that 
citizens of the United States who migrate to a Territori) . . . cannot 
be ruled as mere colonists, dependent upon the will of the General 
Government, and to be governed by any laws it may think proper to 
impose. . . . Whatever [territory] it acquires, it acquires for the bene- 
fit of the people of the several States who created it. It is their trustee 
acting for them, and charged with the duty of promoting the interests 
of the whole people of the Union in the exercise of the powers specifi- 
cally granted .... 

But the power of Congress over the person or property of a citi- 
zen can never be a mere discretionary power. . . . The Powers of the 
Government and the rights and privileges of the citizen are regulated 
and plainly defined by the Constitution itself .... The Territory being 
a part of the United States, the Government and the citizen both enter 
it under the authority of the Constitution, with their respective rights 
defined and marked out ; and the Federal Government can exercise no 
power over his person or property, beyond what that instrument ^in- 
fers, nor lawfully deiry any right which it has reserved. . . . 

It seems, however, to be supposed, that there is a difference be- 
tween property in a slave and other property. . . .the right of property 

been familiar with No. 43. It is impossible to see in his argument anything 
better than perverse special pleading. 

230 Though the best for his immediate purposes, this source of power to 
acquire territory has undoubtedly less judicial {and logical) support than 
any other. See ante n. 117. 



in a .slave is distinctly and expressly affirmed in the Constitution. The 
right to traffic in it . . . was guarantied . . . for twenty years. And 
the government ... is pledged to protect it in all future time, if The 
slave escapes from his owner. . . . 

Upon these considerations, it is the opinion of the Court that the 
act of Congress which prohibited a citizen from holding and owning 
property of this kind . . . north of the line therein mentioned, is . . . 
void. 231 

The advantage, strategically, of deriving congressional power over 
territories from the power to admit new states is thus made very ap- 
parent. It enabled Chief Justice Taney to voice the doctrine that the 
Constitution "extends" automatically over the territories; that is. 
specifically, as respects the restrictions on the power of Congress im- 
posed by the Bill of Rights — which alone were involved in the case. 
(As for the rest of the Constitution, those who denied its automatic 
extension agreed that Congress could, by legislation, extend all of it 
to the territories, so far as pertinent to them, and had "extended" 
much of it.) It seems safe to assume that the great majority of citizens 
in the 1850 's, had the problem of slavery as argued by Calhoun not 
obtruded, would have desired (as the great majority today, if preju- 
dices against distant dependencies of "foreign" population could 
be eliminated, would desire) that whatever constitutional restrictions 
bind congressional power within the states should bind it in ruling 
territories or dependencies. Yet antislaveiy citizens were nonplussed 
by the Calhoun argument — which the Court made the basis of its 
decision, as shown above, in the Dred Scott decision — that because 
other parts of the Constitution also "extended to" the territories, 
slavery was there protected. Undoubtedly the draftsman of the rules- 
and-regulations clause did not intend to give to Congress a power in 
any manner cpialified ; and the acceptance of phraseology satisfactory 
to him, both in that clause and the new-states clause, was due to three 
causes. One, that a political reactionary who was among the most 
active and forceful speakers of the Convention happened also to have 

-yi 60 U. S. at 447-48, 449-50; italics added. Compare the last paragraph 
(particularly) with Calhoun's resolutions of Feb. 1847 printed by Benton 
in his Dred Scott Case. 18 n. After joining in decisions denying compact 
character even to the Ordinance's "compact" articles (post ccxvi seq.). Taney 
made all its provisions compacts in his Dred Scott opinion (ante lxxxvii seq.. 
exx-xxii), but that involved territory outside Virginia's cession. His proposi- 
tion regarding fugitive slaves, above quoted, was therefore based on a theory 
that the Constitution required positive legislation by Congress protecting 
such property — a duty virtually ignored by it until 1850. See z>ost clix seq. 



a gift of style in writing; another, that opinions on these territorial 
problems were so strong and far apart that compromise was unavoid- 
able; and a third — that undoubtedly a majority of the members were 
fearful of foreign intrigue and domestic disorder in any western ter- 
ritories that might be organized. 232 

Whether constitutional restraints did operate on legislation for 
the territories was a question that did not arise in earlier years because 
the Ordinance's supposedly compact articles proclaimed for the bene- 
fit of the Northwest's inhabitants all the traditional Anglo-Saxon 
liberties of person and rights of property unqualifiedly except as tc 
property in slaves (both Calhoun and Taney conceding that exception 
to be good), and there had never been any attempt to violate them. 
But, as respected other territories, the extent of congressional power 
had been a moot problem for nearly a decade before the decision in 
the Dred Scott case. Webster's position on this question was not 
wholly clear. He did clearly deny that those personal liberties which 

232 Post eclxxxiii seq. and eccxxlx seq. It has already been seen that the 
Constitution gives Congress, in the rules-and-regulations clause a power in 
content unqualified. The territories seem, under that, to be entities col- 
lateral and subsidiary to the federal system (see post ccexxiv-v) governed 
with complete discretion by Congress. "The preamble" — of the Constitution 
— "shows it was made by States, and for States. Territories are not alluded 
to in it. The body of the instrument shows the same thing, every clause, 
except one, being for States: and Territories, as political entities, never 
mentioned once; and the word "territory," occurring but once, and that as 
property. . . . Tried by the practice under it, and the Territory is a subject, 
without a political right ... no political rights under it, except as specially 
granted by Congress: no benefit from any act of Congress, except [when] 
specially named in it. . . . Far from embracing these Territories, the Con- 
stitution ignores them, and even refuses to recognize their existence where 
if, would seem to be necessary — as in the case of fugitives from service, and 
from labor. Look at the clause. It only applies to States — fugitives from 
State to State. Why? because the ordinance of '87, the organic law of the 
Territories, made that provision for the Territories" — T. H. Benton, Dred 
Scott Case, 27. "Not a clause in the Constitution which relates to slaves, 
extends to Territories — neither the fugitive slave clause, nor the protection 
against domestic violence, nor the acknowledgment of property implied in 
taxation: and if the Constitution was extended to Territories, (which it 
cannot be,) not a claim could set up under it for protection to slave property! 
Not a law couM be made under it for the protection of that property. The 
Constitution does not even grant protection to a Territory against invasion! 
nor does it guarantee them a republican form of government! and that is 
the reason that they have never been governed on republican principles" — 
ibid. 28-29. The re-enacted Ordinance of 1789 "was made after the Constitu- 
tion, but not under it, for it is a clean and naked piece of abnegation and con- 
tradication of the Constitution from beginning to end" — ibid. 35. 

See post ccxev. Congress, having unlimited power, was alone responsible 
after 1789 for unrepublicanism in territorial government. 



Congress was forbidden by the Constitution's Bill of Rigths to violate 
within the limits of the united states (assuming them to exist there) 
were, by force of that prohibition, given to the inhabitants of any 
territory. They must, lie said, be conferred on such inhabitants by 
congressional legislation. At the same time he disclaimed any asser- 
tion that Congress, while legislating for the territories, was "not 
bound by every one" of the "principles" enunciated in the Bill of 
Rights. 233 What did this mean? — that Congress was legally bound 
to confer the rights and then not violate them? If it meant only that 
there was a moral obligation to confer them, legislation in disregard 
of the principles, after failure to confer such rights, would be per- 
fectly valid. Thomas Hart Benton made no acknowledgment of an 
obligation to confer the rights or respect the principles. It seems 
clear that if one part of the Constitution actually restrained congres- 
sional action on the territories every other part that could possibly 
be pertinent would equally bind Congress. But both Benton and 
Webster showed clearly that aside from these personal liberties in- 
volved in the Bill of Rights — and which were granted to the inhabi- 
tants of the Northwest Territory by the old Congress in 1787 and re- 
granted by the new Congress in 1789 — the latter body legislated from 
the beginning as having absolute power. It was for this reason that 
Benton, in his criticism of the Dred Scott decision, characterized its 
approval of the Calhoun doctrine of the Constitution's "extension" 

233 "Let me say, that in this general sense there is no such thing as extend- 
ing the Constitution. The Constitution is extended over the United States 
[federated states], and over nothing else. It cannot be extended over anything, 
except over the old States and the new States that shall come in hereafter. 
when they do come in. There is a want of accuracy of ideas in this respect 
that is quite remarkable. ... It seems to be taken for granted that the right 
of trial by jury, the habeas corpus, and every principle designed to protect 
personal liberty, is extended by force of the Constitution itself over every 
new Territory. That proposition cannot be maintained at all. How do you 
arrive at it by any reasoning or deduction? It can only be arrived at by 
the loosest of all possible constructions. It is said that this must be so, 
else the right of habeas corpus would be lost. Undoubtedly, these rights 
must be conferred by law before they can be enjoyed in a Territory. . . . 
I do not say that while we sit here to make laws for these Territories, we 
are not bound by every one of those great principles which are intended 
as general securities for public liberty. But they do not exist in Terrorities 
till introduced by the authority of Congress. These princip'es do not. 
proprio vigore, apply to any one of the Territories of the United States, 
because that Territory, while a Territory, does not become a part of the 
United States" — March 3, 1849, Congressional Globe. 30 Cong. 2 Sess. App. 
273 (col. 1); a portion is quoted (inaccurately) by Benton. Dred Scott Case. 
14 n. See also the quotation in Thirty Years' View, 2 (1856): 730-31. 



over the territories as "a fundamental mistake, which pervades [the 
Court's] entire opinion, and is the parent of its portentous errors," 
"the great fundamental error of the Court, (father to all the political 
errors,) " in its opinion. 2 " 4 

Although the problem is now of less manifest gravity than during 
the long period when millions of our citizens lived under territorial 
governments in the West, it is perhaps of no less moment today as a 
matter of national policy in connection with our overseas dependen- 
cies. Since the Spanish-American War the Supreme Court has been 
compelled to deal with it in a number of cases, and the tentative result 
is to uphold Webster's fundamental position that the Constitution's 
guaranties of personal rights and liberties do not automatically "ex- 
tend" beyond the federal system; that they exist outside that only 
at the option of Congress. There is perhaps not yet settled agreement 
as to the test by which to ascertain whether and how Congress has 
manifested its will on that point. 235 

Taney proceeded to assume that various provisions of the first 
eight amendments restrictive or prohibitive of congressional power 
within territory of the united states applied equally to congressional 
power within the territories. 236 Justice Curtis did not challenge him 
on this point; it was not necessary to do so. Indeed, he did not even 
emphasize the fact that the Chief Justice could cite no authorities; 
he even concurred in a general way that the restrictions mentioned 
did in fact exist. 237 

In this way the Chief Justice had, under his views, removed from 
his path the rules-and-regulations clause by holding it to be limited 
to the Old Northwest. He had next substituted for it, as respects all 

23i Bred Scott Case, 11, 26, 35-36; ante cxxxv-vi. 

235 See discussion, and cases cited in W. W. Willoughby, Constitutional 
Laic (2d ed.), sec. 268; particularly, Hawaii v. Mankichi (1903), 190 U.S. 
197; Dorr v. United States (1904), 195 U.S. 138; Rasmussen v. United States 
(1905), 197 U.S. 516. No doubt, looking backward and applying the test of 
"incorporation," it would be found that the constitutional guaranties were 
"extended" by Congress to the Old Northwest — by their explicit grant in 
the compact articles; and so of many other territories. But that does not 
mean that Calhoun's (Taney's) general principles were sound; they were 
both constitutionally unsound and inconsistent with sound principles of 
property law. 

236 60 U.S. at 435, 450. The instances he gave were all from the Bill of 
Rights. Other restrictions of great importance are in Art. I, sees. 8 and 9. 
See a discussion of these by C. C. Langdell. "The Status of Our New Terri- 
tories" (1899), Harvard Lata Revieic. 12: 365, at 379-86. 

2-7 60 U.S. at 623. 



territory acquired in 1803 and later, an implied power to govern, 
deriving this from the source best suited to his purpose of restricting 
the powers of Congress. Yet no express restriction had yet been cited. 
He completed his argument as follows: 

The powers of the Government and the rights and privileges 
of the citizen are regulated and plainly defined by the Constitution 
itself. And when the Territory becomes a part of the United States, 
the Federal Government enters into possession. . . . with its powers 
strictly defined, and limited by the Constitution, from which it de- 
rives its own existence .... it has no power of any kind beyond it ; 
and it cannot, when it enters a Territory of the United States .... 
create for itself a new character separated from the citizens of the 
United States, and the duties it owes them under the provisions of the 
Constitution. The Territory being a part of the United States, the 
Government and the citizen both enter it under the authority of the 
Constitution, with their respective rights defined and marked out ; 
and the Federal Government can exercise no power over his person 
or property, bej'ond what that instrument confers, nor lawfully deny 
any right which it has reserved .... 

For example, no one, we presume, will contend that Congress can 
make any law in a Territory respecting the establishment of religion, 
or the free exercise thereof, or abridging the freedom of speech or of 
the press, or the right of the people of the Territory peaceably to 
assemble, and to petition the Government for the redress of griev- 
ances .... 

These powers, and others, in relation to rights of person, . . . 
are, in express and positive terms denied to the General Government; 
and the rights of private property have been guarded with equal care. 
Thus the rights of property are united with the rights of person, and 
placed on the same ground by the fifth amendment to the Constitu- 
tion, which provides that no person shall be deprived of life, liberty, 
and property, without due process of law. And an act of Congress 
which deprives a citizen of the United States of his liberty or properly, 
merely because he came himself or brought his property into a par- 
ticular Territory of the United States . . . could hardly be dignified 
with the name of due process of law .... 

The powers over person and property of which we speak are not 
only not granted to Congress, but are in express terms denied, and they 
are forbidden to exercise them. And this prohibition is not confined 
[that is, explicitly | to the States, but the words are general, and 
extend to the whole territory . . . under Territorial Government, as 
well as that covered by the Slates .... 

It seems, however, to be supposed, thai there is a difference be- 
tween property in a slave and other property .... [But] if the Con- 
ex lvi 


stitution recognises the right of property of a master in a slave, and 
makes no distinct between that description of property and other prop- 
erty . . . no tribunal . . . has a right . . . to . . . deny it the benefit of 
the . . . guarantees . . . provided for the protection of private prop- 
erty against the encroachments of the Government. 288 

With these final efforts the Chief Justice, speaking for the Court, 
held that slavery in the territories was beyond the power of Congress 
to affect and that the Missouri Compromise was therefore void. 21 ''" 
Let us recall the general course of his argument. He had contended 
that the rules-and-regiilations clause conferred no powers of political 
nature at all, but merely one to regulate the ceded territory as land; 
that if it conferred any political power the terminology did not admit 
of construing it as one of general legislative power; that in any case 
that clause was confined to lands already ceded in 1787 and (incon- 
sistently) the unceded old Southwest; that the true source of Con- 
gress' legislative power was its power to admit new states; that this 
end controlled the means (of prior government), and necessarily 
excluded all "arbitrary" or capricious government; that hence Con- 
gress had either no powers over the personal status and property of 

2ss 60 U.S. at 449-51. Benton seemingly believed that arguments sup- 
porting "the supposed unconstitutionality of any regulation which would 
prevent a master from taking his slaves with him to a Territory" were re- 
futed by the fact that the master himself might be excluded, or ejected after 
entry — Drecl Scott Case, at 128. All the earliest settlers in the Northwest 
Territory were unlawful intruders upon public lands; countless squatters 
were later, there and in other territories, the same. It is true that the army 
many times ejected such intruders and destroyed their crops; though the 
battle against squatters was ultimately lost and the pre-emption acts passed. 
Benton cites an extraordinary instance when a strip of Arkansas Territory 
was cut off and given to the Cherokees, and its inhabitants driven away 
with their herds and slaves. But all this is beside the point. The question 
was: when a master could not be excluded (under statutes or the police 
power) must his slaves be admitted with him? 

2:i!1 Justice Catron deserted the majority in their holding that the rules- 
and-regulations clause was not the source of Congress' power to govern the 
territories — 60 U.S. at 519-20; but nevertheless held the Missouri Compromise 
act void because it conflicted with a supposed guaranty of slavery in Art. 
3 of the treaty by which the Louisiana Purchase was effected — ibid, at 524-28. 
There was no merit in this contention; see post ccxxvii at notecall 110 and the 
opinions of Justices McLean and Curtis — 60 U.S. at 557, 630-33. 

As regards the rules-and-regulations clause Justice Catron said: "It is 
asking much of a judge, who has for nearly twenty years been exercising 
jurisdiction, from the western Missouri line to the Rocky Mountains, and 
on this understanding of the Constitution, inflicting the extreme penalty of 
death for crimes committed where the direct legislation of Congress was 
the only rule, to agree that he had been all the while acting in mistake, 
and as an usurper" — ibid, at 522-23. 



territorial inhabitants (except to protect them) or that its powers in 
the territories were at in some way controlled — possibly only by 
traditional ideals — by the restrictions placed in the first eight amend- 
ments upon congressional legislation operative within the states, and 
particularly bj' the due process provision of the Fifth Amendment. 
The confusion underlying the assumption that the territories were 
''part of the United States" has already been pointed out. 24 " The 
arguments of Webster were ignored save for the presumption that 
nobody would contend what, in fact, he did contend. 

What was the force of this reference to the "due process'' pro- 
vision ? Of the various constitutional provisions alluded to by Taney 
as supposedly restrictive of congressional powers in the territories 
this was the only one that could possibly have applied to the actual 
case before him. Yet he did not declare that the Missouri Compromise 
violated the Fifth Amendment; he cited no authorities — made no 
argument. The vague, merely allusive, and plainly qualified character 
-of his reference seems sufficient to show that he was appealing merely 
to the general spirit underlying the Amendment. Had the Chief 
Justice really rested his case on a violation of the due process clause, 
it would unquestionaly have been demolished by the counterargu- 
ments of Justice Curtis. 211 

The hitter's opinion was equally destructive of the Chief Justice's 
other arguments. It has already been seen that he successfully re- 
futed the claim that the rules-and-regulations clause related solely 
to the Northwest Territory. 212 Starting, then, with the fact that Con- 
gress was empowered to pass "all needful" enactments for the ter- 
ritories, it was those who denied the powers of Congress over slaves 
who asked for an exceptional treatment of that type of property; that 
is, the Chief Justice and his supporters — not, as he said, the anti- 
slavery dissenting justices. 24 '' It was the Chief Justice who was com- 
pelled to claim, as respected the rules-and-regulations clause, that 
"though it says all, without qualification, it means all except such as 
allow or prohibit slavery." 244 And, said Justice Curtis, where the 
Constitution said "all," there must be "something more than theo- 

240 Ante n. 233. See ante n. 1; -post cccxiii-xv, ccclxxxix, and nn. 

-+i 60 U.S. at 626-27. 

242 ibid. 605-14. 

2-13 ihicl. 451 and 620. 

244 60 U.S. at 615, per Justice Curtis. 



retical reasoning" to induce him to accept any narrower meaning. 245 
For his part, be had more than mere surmises on which to depend. 
The First Congress, containing twenty-two members who had sat in 
the Federal Convention, had in 1789 re-enacted the Ordinance of 
1787, with its prohibition of slavery in the Northwest Territory, "in 
order that . . . [it] may continue to have full effect."- 40 Over a period 
of more than half a century Congress, as already noted, had assumed 
in passing thirteen statutes that it had power either to prohibit or 
to permit slavery in the territories. 

In all that Taney said of restrictions upon congressional power 
over property he seems, in effect, to have been attempting to give a 
legal basis, without having much confidence in the argument, to 
Calhoun's dictum that property in slaves was "recognized" by the 
Constitution, and was therefore above and beyond any legislation by 
Congress. He had no authorities. 247 

Of course the Constitution did "recognize" slave property in 
allowing continuance of the slave trade for twenty years, and in pro- 
viding for the return of fugitive slaves. But in the doctrines of Cal- 
houn and Chief Justice Taney, there was attributed to the "property" 
thus recognized an absolute and universal character not required by 
the Constitution, nor consistent with its other provisions, nor adhered 
to in later constitutional construction. The recognition, in truth, was 
only one of property where made such by local law. 

The situation as to fugitive slaves was simplest. A state provides 

2-i3 Ibid, at 621. 

246 ma. at 617. 

-+ 7 The doctrine of vested property rights beyond the power of a state 
unduly to impair had been involved before 1857 in a considerable body of 
state decisions; and in some states the basis of such decisions was the due 
process clause of their constitutions. Professor E. S. Corwin has expounded 
at length the history of this doctrine. Presumably because of a feeling that 
a court should have definite legal authority for its pronouncements, he 
has ascribed to Chief Justice Taney an attempt to engraft this principle 
as a restriction on the power of the federal government. See his Doctrine 
of Judicial Revieic (1914), at 148-52, his article on "The Dred Scott Decision 
in the Light of Contemporary Legal Doctrines" (1911), in Amer. Hist. Rev. 
17: 52, at 61-67, and two articles on "The Doctrines of Due Process of Law 
before the Civil War" (1911) in the Harvard Law Rev. 24: 366-85, 460-79. 
If in fact such was Taney's attempt, Mr. Corwin showed that he had only 
one state decision to support him, as against decisions in a dozen other states 
— and no authorities on the issue of federal power. I believe that it is fairer 
to the Chief Justice to assume that he relied merely on the theory of in- 
definite constraint by the spirit of "the Constitution," when assumed to 
extend to the territories and control congressional legislation therein. 



remedies by which the owner of a chattel may enforce his rights there- 
to or therein against third persons, in recovering it or in protecting his 
possession and enjoyment. If the state does not recognize a given thing 
as capable of being property there are no such remedies. The fugitive- 
slave provision positively required co-operation by free states in the 
recovery of fugitives. Possibly this requirement, in itself, did not 
override state sovereignty ; it was consistent with later doubts as to 
whether a state could alter rights in things which — whether in or not 
in interstate commerce — were only transiently within its borders. 
Under that doctrine a state could not rightfully refuse to recognize 
a fugitive slave as property — though a Supreme Court inimical to 
slavery would certainly, while that existed, have followed the doctrine 
of immediate emancipation by entry upon the soil. 248 There would 
seem to have been a great encroachment upon state sovereignty as 
respected even the time and mode of giving the aid required by the 
statutes of 1793 and 1850, for the Supreme Court in construing the 
latter act subordinated a free state's police power, and seemingly even 
its criminal law, to the policy of making effective the constitutional 
provision for the return of fugitives. 24 " 

Upon this basis of a mere recognition of slave property in the 
fugitive-sl&ve clause Calhoun originated the doctrine, to which Taney 
gave constitutional status, relating to the introduction of slaves by 
the if masters into federal territories. 

Consider first the situation as respected the states. But for the 
presence in the Constitution of the privileges-and-immunities clause 
(Article IV, Section 2) each state could freely deny or permit the 
introduction of movable property of any nature. Slaves were not the 
only type of such property "recognized" by the Constitution. Though 

248 For the present view of transitory presence, not in interstate com- 
merce, see Minnesota v. Blasins (1933), 290 U.S. 1. On the general power of 
a state over chattel titles see note on "The Power of a State to Affect Title 
in Chattels Atypically Removed to It" (1948), Columbia Lair Review. 48: 
76-86. And compare, as regards the attitude of state courts toward instantane- 
ous emancipation, post n. 250. For a critical review of English decisions, 
including the Somerset case, see J. C. Hurd, The Laic of Freedom and 
Bondage in the United States (2 vol. 1858-1862), 1: sees. 180-91. 

248 Compare remarks in Prigg v. Pennsylvania (1842), 41 U.S. 539, at 
645 (Justice Wayne on the basic intent of the provision); 613, 625 (Story. 
J.), 626 (Taney, Ch. J.), 634 (Thompson, J.), 668 (McLean. J.) on police 
power and criminal law; 643, 627-33, 652 on total exclusion of state legisla- 
tion even in aid of the federal statute. On the Prigg case see Hurd, op. eit. 2: 
sees. 728, 804-6. 



it does not mention cattle, household goods, or any other of the myriad 
forms of personal property, the application of various of its provi- 
sions — among them the privileges-and-immunities clause — involves the 
recognition of all of them. But there is nothing absolute in the 
"property" thus recognized. Almost all movables are recognized 
as property in all our states, but only with infinite variations in de- 
tail as respects the legal content that defines the precise nature of such 
"property"; that is, as respects the rights conceded to and the duties 
imposed upon the owners by local law, and as respects the legal 
remedies available for the protection of the rights and for enforce- 
ment of the duties. The definition of all types of property, save alone 
those (such as patent rights) that are created by Congress under 
grant of specific power in the Constitution, is left to the states. These 
few types aside, the things the Constitution "recognizes" as property 
are those that are property in the several states, and with the legal 
meaning there given to title. An independent country may absolutely 
exclude particular types of property recognized by it as such, or may 
refuse to recognize the legal existence of property of particular types. 
The few types of federal property again aside, the Constitution forced 
upon no state recognition of any specific type of property except 
fugitive slaves And while, as already said, that provision was pos- 
sibly not necessary to prevent immediate emancipation of the fugi- 
tive, the provision was inserted because free states existed, and per- 
haps because emancipation was feared, either instantaneous or con- 
sequential. 25 " 

2r '° See Clay's remarks on statutes of Louisiana and Mississippi for- 
bidding the entry of slaves unless brought by their masters with intent of 
there residing, and on the emancipation of any introduced in violation of 
those statutes — Cong. Globe. 31 Cong. 1 Sess. App. 1410 (col. 2); Madison 
(1788) on immediate emancipation by entry into a free state — Farrand, 
Federal Convention, 3: 325. See also G. M. Stroud. A Sketch of the Laics 
Relating to Slavery in the Several States of the United States of America 
(2d ed. 1856), on laws in slaveholding states restricting introduction of 
slaves, 87-92: also, on recognition of instantaneous emancipation, 208-12. 
It was at one time possible to contend that such statutes violated the exclusive 
jurisdiction of Congress over interstate commerce, as Clay and Webster 
argued in Groves v. Slaughter (1841), 40 U.S. 449, 488, 494. The decision 
evaded that issue, but the argument was decisively repudiated in dicta — see 
507-10. It was also long a mooted question whether such statutes violated 
the privileges-and-immunities clause; see Huid, Freedom and Bondage. 2: sees. 
664-82. The law of fugitive slaves in a'l details is considered by him in sees. 
711-960. The clanger of emancipation through escape into free states is 
obvious. Endless difficulties had been encountered ever since the Constitu- 
tion had gone into effect in obtaining what southerners regarded as adequate 



What, then, of the territories? Respecting- slavery therein the 
Constitution made provision for fugitive slaves only. By implication. 
it did not in any way otherwise regulate the institution. With that 
assumption the antislavery minority in the Dred Scott decision com- 
bined a broad construction of the rules-and-regulations clause to sup- 
port the view that Congress had unquestionable power to enact the 
compromise of the Missouri Act. On the other hand the majority rested 
on the views of Calhoun : first, his life-long opinion that the rules- 
and-regulations clause conferred no governmental powers ; second, his 
theory (first enunciated in 1850) that all the Constitution auto- 
matically and instantaneously extended to any territory when ac- 
quired, with the consequence that its "recognition" of slave property 
carried slavery into every territory, and made unconstitutional any 
law of Congress purporting to exclude it. 

Of this doctrine various criticisms — in addition to the all im- 
portant one, already adverted to, that it is not supported by subse- 
quent decisions of the Supreme Court — may now be offered. 

The first is that there was no legal basis for the claim of Calhoun 
and Taney that to permit exclusion of slavery from a territory was 
unjustly to "deprive" a slaveholder of property. If an owner of 
personal property removes it into another state his rights in relation 
thereto are often lessened or weakened, or his duties increased, but 
such a deprivation is never regarded as an injustice. A country 
(or one of our states) which does not recognize some specific type of 
property does not "deprive" of property an immigrant who vainly 
demands recognition of such a right. Calhoun and Taney, of course, 
made no denial of this as respected the exclusion of slavery from a 
state; and if exclusion from a territory by congressional legislation 
was otherwise constitutional there would evidently be no discrimina- 
tion against immigrant citizens of slave states under the privileges- 
and-immunities clause. Both Calhoun and Taney seem to have ad- 
mitted this — to themselves; for both of them evaded the point by 
arguing that the denial of right was to the slaveowner's state ; that to 
admit property of a kind other than slaves brought by a northerner 
into a territorv, and exclude slaves sought to be brought into it by 

aid from free states in effecting the return of fugitive slaves. This situa- 
tion was seemingly not greatly changed by the enactment of the first fugitive 
slave act, of 1793; see 41 U.S. 645. Of course, if recaption was not prompt 
the danger of actual emancipation became very great. 



a southerner, was to make an unjust discrimination against the south- 
ern states. The view of Justice Curtis was that the territories were 
acquired for all the citizens of the United States, collectively, not in- 
dividually nor in state groups. 251 On the other hand the Chief Justice 
regarded the territories as acquired by "the people of the several 
States" who created the Constitution and federal government, and 
as held by the latter as their trustee. 25 - That was pure states '-rights 
doctrine, now of merely historical interest. Resort to this political 
doctrine only weakened his argument. 

The other weaknesses of the Calhoun-Taney theory all arise from 
its disregard of basic princijnes of property law. 25 " 

The second specific criticism of it is, that in consequence of that 
disregard the doctrine was utterly unworkable as a rule of actual 
government. Obviously, the status of a slave, like property of any 
other type, could exist solely by virtue of local law. As Justice Curtis 
said, "the rights, powers, and obligations which grow out of that 
status, must be defined, protected, and enforced, by such laws"- — 
and there were no such laws in the free territories. If a slaveowner 
could take with his slave into a territory the local law that made him 
such, all the varying and inconsistent sj'stems recognized in different 
slaveholding states must have existed in the territories simultaneously. 
This, said Justice Curtis, "would, if ever tried, prove to be as 

2r.i 60 U.S. at 626. 

- r >~ Ibid, at 448, quoted above. See the words of the Chief Justice, quoted 
ante following notecaU 230, and with them compare Calhoun's resolutions 
of 1847 quoted in Benton, Dred Scott Case, 18 n. It is explicitly stated by 
the Chief Justice that the federal government is trustee of the "people of 
the several States," but he also said it was trustee to promote the interests 
"of the whole people of the Union." 

253 Under the privileges-and-immunities clause of the Constitution a citizen 
has a right to take his "property" from one state into another. In the ab- 
sence of the constitutional provision entrance would depend solely on comity. 

So long as the property is of ordinary type, recognized as such both in 
the state of the owner's domicile and in the state to which he moves (or 
sends the property), few difficulties arise. However, even as regards such 
property: (1) though the title of the owner is perforce recognized, the 
content of the title depends wholly on local law — as respects liability to the 
receiving state for taxes on it and the power of that state to control its use; 
as respects the remedies available to the owner for its protection, and as 
respects the rights of third persons against it in enforcing claims against the 
owner, etc. Also, (2) entry of property may be delayed or wholly barred 
under the police power, for the health or safety of the citizens of the receiv- 
ing state— either because of its inherent character, or until after treatment 
for disease (plants, animals), or alteration in objectionable characteristics. 

When the "property" involved is recognized as such in one state but 
not in the other, the problems next discussed in the text arise. 



impracticable in fact, as ... it is ... monstrous in theory."- 51 
The absurdities of the theory in this respect were strikingly 
stated by Senator Benton : 

The citizens of all the States, free and slave, are precisely equal 
in their capacity to cany their property with- them into the Terri- 
tories. . . . Either may carry the thing which is the subject of this 
local property, but neither can carry the law which makes it so. . . . 
If the citizen of one State might carry his slave State law with him 
into a Territory, the citizens of every other slave State might do the 
same ; and .... every slave State has a servile code of its own .... 
How would all these codes work together in a Territory under the 
wing of the Constitution, protecting all equally? No law of Congress 
there, or of the Territory • • • forming them into one ; no law to put 
the protecting power of the Constitution into action, but of itself .... 
No ; the thing is impossible. . . . For instance, in Virginia slaves are a 
chattel interest, and belong to the husband, although come by the wife. 
and may be seized and sold for his debts — even those contracted be- 
fore marriage; or he may give them away, or devise them to his own 
kin, or children by another marriage. Removed to Kentucky with 
these slaves, they become real estate, and belong to the wife or her 
blood; and the husband has no more rights in them than in her land. 
Tf he removed again and got into Tennessee with his slaves, they re- 
turn to their chattel condition; and go as they would in Virginia. 
And if he passed on as far as Louisiana, another metamorphosis of 
Ids property ! For there they become real estate again — and also 
become subject ... to the civil law partnership between husband and 
wife.'- 55 

A third criticism of the Calhoim-Tanev doctrine is, that because 

-"> 4 60 U.S. at 624-25. "When any slave is sold . . . there must pass with 
him ... as a kind of unknown jus hi re. the foreign municipal laws which 
constituted, regulated, and preserved the status of the slave before his ex- 
portation" — Ibid. 626. 

Professor Corwin, ante n. 247, nowhere explicitly refers to these objections 
(nor to such are pointed out in n. 253) to the Calhoun-Taney theory. They 
are, however, absolutely destructive of it (aside from such nuisance value 
as it might have in politics) unless its purpose was to force Congress to 
establish by affirmative act a slave code in each territory. There is a para- 
graph in Mr. Corwin's Judicial Review. 145-46. which is quite acceptab'e 
so far as it relates to Justice McLean's claim that slavery should not be 
recognized as property in the territories because contrary to "natural law." 
But the last sentence in the paragraph, if intended to dispose of the sound 
arguments of Justice Curtis on the matters here referred to, would be be- 
side the point, and utterly inadequate to that task. The idea that there can 
be in any one state at different times or in different states at the same time 
"the same control of property, of whatever description" (Corwin, ibid.) is 
purely conceptual, quite divorced from the realities of actual law, a sort of 
natural law itself. 

253 Benton, Bred Scott Case. 19-20. 



the rule was utterly impractical one could not reasonably attribute 
to the framers of the Constitution an intention to establish it ; — this 
argument reinforcing the natural inference, above referred to, ex- 
pressed in the legal maxim expressio unius est exclusio alterius. Justice 
Curtis concluded his argument thus : 

Is it" conceivable that the Constitution has conferred the right 
on every citizen to become a resident on the territory of the United 
States with his slaves, and there to hold them as such, but has neither 
made nor provided for any municipal regulations which are essential 
to the existence of slavery? 

Is it not more rational to conclude that they who framed and 
adopted the Constitution were aware that persons held to service under 
the laws of a State are property only to the extent and under the 
conditions fixed by those laws; that they must cease to be . . . prop- 
city, when their owners place them permanently within another jur- 
isdiction, where no municipal laws on the subject of slavery exist ; 
and that ... it was their intention to leave to the discretion of Con- 
gress what regulations, if any, should be made concerning slavery 
therein? 256 

Another consequence of the variability from state to state in the 
meaning of slave property is plain. Slavery could not be automati- 
cally extended to a newly acquired territory by the Constitution alone ; 
it could be extended only after enactment by Congress of a slave code 
for each territory.-"' 7 Tt would be an absurdity to harbor the thought 
that Calhoun was not fully conscious of the facts and the consequence ; 
and a greater absurdity to suggest such a possibility in the case of 
Chief Justice Taney. They were not elaborate in statements as to 
what legislation by Congress was permissible ; they merely insisted 
that the right to own slaves in the territories existed, that it was in- 
destructible by Congress, and that the legislative power of that body 
existed primarily — if not solely — to protect the persons and property 
of territorial settlers. Everything said by them is consistent, and 
nothing they said is inconsistent, with the conclusion that in then- 
view the Constitution carried into a territory the right to own slaves, 
and that Congress was bound to extend slavery as a regulated institu- 
tion by enactment of appropriate laws. As Senator Benton put it, 
and as evervone knoAvs, Calhoun "was a man of head, and of svs- 

60 U.S. at 625. 

Benton pointed this out in his Bred Scott Case, at 23. 



tern." His objective and theory are plain. The theory being the same 
in Chief Justice Taney's exposition in the Dred Scott case, why should 
anyone doubt that he had the same objective? 

Assume that in truth there was a constitutional right in any 
citizen of any slave state to own slaves in a territory, so that there 
could exist no free territory. The crowning absurdity of this doctrine 
was that there was logically implicit in it a conclusion destructive of 
the state sovereignty or states' rights to which Calhoun devoted his 
life. This conclusion was that there could be no nonslaveholding 
state; not even a southern slave state desiring in its postulated sov- 
ereignty to rid itself of slavery could do so. For even a state had 
no sovereignty against a constitutional right. Assuming that a slave- 
holder had such a right to property in his slave against Congress, no 
sensible reason — no logical, unequivocal, unevasive reason — could be 
given why that right would not be equally inviolable by a state. IF. 
then, a supposedly free state, instead of a supposedly free territory, 
refused to recognize such property right "the damage would be the 
same. . . . The case would cry equally for the interposition of the 
Supreme Court, and it would be a case in which the court would have 
a clear right to interpose. For the Constitution of the United States 
is supreme over State constitutions, State laws, and State judiciaries"; 
and here again there was implicit in the Court's doctrine the identical 
objective which proslavery extremists had stated somewhat more 
openly in the Senate three years earlier! That the Court could have 
overlooked either its implication or the precedent is a highly im- 
plausible possibility. 258 As Lincoln repeatedly said in his debates 
with Douglas, the decision went "very far to make slavery national 
throughout the United States." 25 " 

But now finally, consider again this supposed constitutional right. 
As has already been remarked, slave property was no more i-ecognized 
by the Constitution than other property. The remarkable thing about 

258 Benton, Dred Scott Case, at 22 and (for the reference to 1854) 163-70; 
but he does not note the parallel. 

250 Speech at Freeport, Aug. 27, 1858— Complete Works (Nicolay & Hay, 
1905 ed.). 3: 290. Again: "this decision does not mere'y carry slavery into 
the Territories, but by its logical conclusion it carries it into the States in 
which we live" — ibid. 5: 180-81 (Columbus speech, Sept. 16, 1859). He put 
this question to Douglas: "If the Supreme Court of the United States shall 
decide that States cannot exclude slavery from their limits, are you in favor 
of acquiescing in, adopting, and following such decision as a rule of political 
action" — ibid. 4: 208 (Oct. 1, 1858). See also ibid, 5: 120-21. 



slave property — the fact that it was mentioned — was due to its excep- 
tional nature and the necessities of compromises that made its men- 
tion necessary. It has likewise been remarked that the Constitution 
no more recognized the right of states to create slavery than it recog- 
nized their right to exclude it. Well might Henry Clay say, in the 
debate on the Compromise Bill of 3850: 

Now, really, I must say, that the idea that eo instante upon the 
consummation of the treaty the Constitution of the United States 
spread itself over the acquired country, and carried along with it the 
institution of slavery, is so irreconcilable with an}^ comprehension or 
any reason which I possess, that I hardly know how to meet it. Why, 
sir, these United States consist of thirty States. In fifteen of them 
there was slavery; in fifteen, slavery did not exist. How can it be 
argued that the fifteen slave States, by the operation of the Constitu- 
tion of the United States, carried into the ceded country their institu- 
tion of slavery, any more than it can be argued, upon the other side, 
that by the operation of the Constitution, the fifteen free States 
carried into the ceded territories, the principle of freedom, which they, 
from policy, have chosen to adopt within their limits? 260 

The fact is that the South demanded and secured concessions in favor 
of slavery when the Constitution was framed, as the price of Union, 
and was simply demanding more, under the cover of Calhoun's 
theories, when it became clear that she could not otherwise continue 
her dominance in the government. 

No sound basis, then, can be found for the decision of the court.-'' 1 


Morris' purposes as to acquired foreign territory are revealed 
by the letters of 1803. That the]} were very similar as regarded 
domestic territory is clear from the debates in the Convention. The 
early drafts of the admission clause had read that "provision ought" 
to (or "should") be made for the admission of new states. They 
also provided, in compliance with the compact between the Confedera- 

^"Feb. 5, 1S50, Cong. Globe, 31 Cong. 1 Sess. App. 117 (col. 2). 

- ,;1 It may be added that its first decision (ante exxxi-ii) can only with 
grave doubts be pronounced either sound or erroneous. The arguments for 
and against it cannot here be considered. The third decision was incon- 
testably sound; consequently, even were both the other decisions wrong, the 
outcome of the case was legally correct. - 



lion and Virginia, for the equality and republican character of such 
states.-' 1 - Morris moved to strike the provisions that new states should 
be admitted "on the same terms with the original States," and that 
Congress might impose on them ' ' conditions . . . concerning the public 
debt . . . then subsisting." He did not, he said, "mean to discourage 
the growth of the Western Country. He knew that to be impossible. 
He did not wish however to throw the power into their hands." 203 
In short, he desired freedom for Congress to impose upon new states 
such conditions, thereby creating among the members of the Union 
such inequalities as that bod_y might in its discretion desire. And he 
did not wish, by including provision for the one condition of sharing 
liability for the national debt, to imply any lack of power to impose 
other conditions. The debate shows that at least a few other dele- 
gates who shared his views had in mind the Northwest Territory, as 
respected both discretion to admit new states and the omission of a 
provision for equality. 264 The power which he desired Congress to 
possess over both foreign and domestic territory, was therefore per- 
fectly expressed by the rules-and-regulations clause. It may be added 
that Madison made in later years the statement (one which, as it 
would naturally be understood, is not literally supported by the exist- 
ing records) that "there was a proposition in the convention . . . 
declaring that the aggregate number of representatives from the states 
thereafter to be admitted, should never exceed that of the states 
originally adopting the Constitution." 265 

Notwithstanding Madison's insistence that new states "neither 
would nor ought to submit to a Union which degraded them from an 
equal rank with the other States," the Convention — after refusing 
to strike out, as Morris moved, a clause explicitly declaring that new 
states should be equals of the old, and another exceptionally allowing 
inequality in one matter — adopted Morris' substitute, which was 
practically the clause as it now stands in the Constitution, and which, 
omitting both clauses, evaded the issue; doubtless for a variety of 
reasons entertained by different delegates, with each of which its 
vagueness was consistent. No doubt, however, Morris' views were 

262 Farrand, Federal Convention, 1: 22, 117, 215; 2: 30, 133, 173. 
2fls ibid. 2: 454. 

264 ibid. 454-55. 

265 Letter of Nov. 27, 1819, to Robert Walsh — Farrand, Federal Conven- 
tion, 3: 438. 



those of a minority, possibly a small minority, of the Convention's 
members. 206 

The rule of equality among all Union members which was thus 
rejected by the constitutional provision, at least to the extent of leav- 
ing the matter to the discretion of Congress, was either explicitly de- 
clared or necessarily implied in all other state papers of the Con- 
federation era. The general idea of organizing new political com- 
munities in the transmontane area had been widespread for some time 
before the legal establishment of the Confederation. Plans for the 
creation of such communities as frontier bulwarks against the French 
possessions in the North and West were involved in the negotiations of 
the British government with private land companies on the western 
frontier. 267 A private Englishman who considered that American 
independence would redound to the interest and glory of Great Britain 
suggested in 1774 the creation of various states, each "to become a 
party to the Grand British League and Confederacy." 268 Surely, 
emigrants to the West assumed that they would be builders of new 
states, no matter how few of them may have left letters about such 
matters, or were sufficiently literate to do so. In fact the Revolution- 
ary constitutions of two states proclaimed that to be their natural 
right ; and although, after reflection, that declaration was omitted by 
them in later constitutions, the declaration of a natural right to emi- 
grate was repeated, and in this a third state joined. 200 That the 
expectation was general in the East that new western states would be 

266 Ibid. 2: 454-55. 

2137 See G. H. Alden, Netc Governments West of the Alleghanics before 1780 
( 1897), quoting at 40-41 the report of the Board of Trade to the Privy Council, 
from Franklin, Works (Sparks ed.), 5: 32; C. W. Alvord, The Mississippi 
Valley in British Politics (1917), particularly ch. 4, 12 of vol. 1 and 2, 8 of 
vol. 2. 

268 John Cartwright, American Independence the Interest and' Glory of 
Great Britain; see Amer. Hist. Rev. 30: 537-43, particularly 540-41. 

269 Both the right to emigrate and the right to form new states were pro- 
claimed by the constitutions of Vermont in 1777 (Decl. of Rights, sec. xvii) 
and 1786 (Decl. of Rights, sec. xxi) and by the Pennsylvania constitution 
of 1776 (Decl. of Rights, sec. xv) to be "natural and inherent" rights. And 
though Vermont had a boundary dispute which made these rights vital 
issues, Pennsylvania did not. The former's constitution of 1793 (Decl. of 
Rigbts, sec. xix ) omitted the second of the two rights, but still proclaimed 
the first to be "natural and inherent." All these constitutions described 
this first right as one to emigrate to any other state "that will receive them." 
The Pennsylvania constitution of 1790 merely provided (Art. IX, sec. 25) 
"that emigration from this State shall not be prohibited"; and Kentucky 
included this same provision in its constitutions of 1792 (Art. XII) and 1799 
(Art. X, sec. 27). 



formed is plainly evidenced by the state papers of the time.- 7 " Mary- 
land's "resolution" of October 1777, which proposed the nationaliza- 
tion of the western lands, called for their organization into "separate 
and independent states."- 71 It has been noted that Congress, after 
voting in 1780 to urge on all states the release of their land claims to 
the Confederation, adopted a motion by Virginia that all lands ceded 
.should be "laid out in separate and distinct states" ; and that this was 
amended to read, "formed into distinct republican states, and have 
the same rights of sovereignty, freedom and independence as the 
other states." 272 Virginia's cession offer of 1781 and actual grant of 
1784 contained substantially, and her cession offer of 1783 contained 
identically, the same condition ; and as already seen, the cession was 
accepted by Congress subject thereto. 27 3 The ordinances of 1784 and 
1787 for the government of the Territory Northwest of the Ohio were 
drafted in compliance with this compact of Virginia with the Con- 
federation. 274 Yet, despite all this, it is a fact that the Ordinance of 
1787 purported to impose, prospectively, upon the states to be organ- 
ized thereunder "substantially every provision that is to be found, 
by way of compact or fundamental condition, in any [enabling act 
or] act of admission prior to the Civil War." 275 

It may be added that all except seven of the states that have been 
added to the original Union of thirteen were subjected to some one or 
more conditions which ostensibly limited their powers as states after 
admission. 27 " On the other hand, Vermont and Kentucky were each 
admitted "as a new and entire member of the United States of 

27o "Probably the first expression of the idea of creating independent 
states in the West was contained in Jefferson's proposed constitution for 
Virginia in 1776" — M. Jensen, The Articles of Confederation. 225. 

- T i Oct. 15 — Jour. Gont. Cong. 9: 807. Her "declaration" of Dec. 15, 1778 
confirmed the "resolution without repeating the words — Hening, Statutes. 
10: 549. 'The same is true of her "declaration" of Feb. 12, 1781 — Jour. Cont. 
Cong. 19: 138. 

-'- Ante, at notecalls 50 to 53, and those notes. 

-'"-Citations in nn. 53, 62, 63, ante. 

-'* The same is true of the Land Ordinance of 1785 — Carter, Territorial 
Papers. 2: 12. Language identical with that quoted above from the legislative 
acts of Virginia and the Confederation was therefore necessarily repeated 
in the proceedings of Congress and in reports to it by its committees, in- 
cidental to the drafting of all three ordinances mentioned; the citation of 
such language would have no independent significance. 

- 7fi W. A. Dunning, "Are the States Equal under the Constitution?" in 
his Essays on the Civil War and Reconstruction (1898), 309. 

27<; The exceptions were Vermont (1791), Kentucky (1792). Tennessee 
(1796), Maine (1820), West Virginia (1863). Idaho (1S90). Wyoming (1S90). 



America," and every enabling act or admission act or proclamation of 
admission since that of Tennessee in 1796 has purportedly admitted the 
new member "on an equal footing with the original States" — or, in a 
few instances, "the other States." 

The conditions ostensibly imposed have been of varied nature. 
Acceptance by the state of the boundaries fixed for it by Congress has 
sometimes been stated as a condition of admission. Very often it has 
been stated as a condition that the state should never interefere with 
the control or sale of United States land within its borders, or tax 
such land or other propertj^ of the Union. Some constitutional con- 
ventions have been required, in framing the constitution of applicants, 
to ' ' adopt ' ' the Constitution of the United States. Upon many the con- 
dition has been imposed of framing a constitution not repugnant to 
the federal Constitution ; of doing things already required by its pro- 
visions to be done ; or of not doing things already by its provisions for- 
bidden. The consideration for grants of public lands made to new 
states for public purposes has very often been the acceptance of condi- 
tions imposed upon their use. But often the consideration for such 
grants has been the acceptance of conditions totally unrelated to the 
use of the lands granted. Many conditions ostensibly imposed have 
been, so far as their statement indicates, quite unconnected with such 
land grants or any other quid pro quo to balance them; that is, for 
none other, if any, than the grace of admission. 

Imposed with or without other supposed consideration have been 
requirements that applicants submit a constitution in harmony with 
the Ordinance of 1787 or with the principles of the Declaration of 
Independence ; that they consent to temporary exercise by the federal 
government within the state of powers properly exerciseable during 
the territorial era but undeniably open thereafter to challenge ; that 
they abstain from taxation of public lands within the state for stated 
periods after the sale of such to private owners; that they maintain 
a ' ' system ' ' of free and nonsectarian public schools — required in a few 
cases to be conducted exclusively in English ; that they assume their 
territorial debts; that a state (this before adoption of the Fifteenth 
Amendment) should not restrict the franchise on account of race, 
color, or previous condition of servitude, or should not restrict on ac- 
count of those qualities the civil or political rights of its citizens ; that 
the location of a state capital, as fixed by Congress, should not for a 



stated period be altered; that the applicant's constitution should in- 
sure a perfect tolerance of religious beliefs and practices — and, in a 
few cases, that it should proscribe polygamy ; or finally the most 
famous case of all, around which raged most of the great Missouri 
debate, — that no such laws should ever be passed by the legislature of 
that state as the constitution under which it was admitted to the 
Union declared that its legislature should enact. 2rT 

The legality of such restrictions was doubted from the beginning 
by some, possibly by many. 278 The general limits within which they 
are effective, or on the other hand nullities, cannot here be discussed 
in detail. It is manifest that various of the conditions above enumera- 
ted could in no manner or degree affect the sovereignty of a state 
(beyond restraints of the federal Constitution), or its equality with 
other states, after admission. In a case in which the Supreme Court 
was compelled to deal with the problem in a decisive manner, and after 
reviewing all the precedents, it said : 

The power is to admit "new States into this Union". 

"This Union" was and is a union of States equal in power, dignity 
and authority, each competent to exert that residuum of sovereignty 
not delegated to the United States by the Constitution itself. . . . we 
must distinguish, first, between provisions which are fulfilled by the 
admission of the State ; second, between compacts or affirmative legisla- 
tion intended to operate in futuro, which are within the scope of the 
conceded powers of Congress over the subject ; and third, compacts or 
affirmative legislation which operates to restrict the powers of such new 
States in respect of matters which would otherwise be exclusively 

-~'~ Missouri's legislature accepted this condition. See J. A. Woodburn, 
"The Historical Significance of the Missouri Compromise," Amer. Hist. 
Assoc. Rejiort, 1893: 265-89; and ante n. 135. 

27S Madison, at least, was one of the early doubters. Compare the fol- 
lowing statement from a letter written by him in 1819: "As to the power 
of admitting new States into the federal compact, the questions offering 
themselves are; whether Congress can attach conditions, or the new States 
concur in conditions, which after admission, would abridge or enlarge the 
constitutional rights of legislation common to the other States; whether 
Congress can by a compact with a new member take power either to or from 
itself, or place the new member either above or below the equal rank & 
rights possessed by the others; whether all such stipulations, expressed or 
implied would not be nullities, and be so pronounced when brought to a 
practical test" — Madison, Writings (Hunt ed.) 9: at 6-7. Secretary Crawford, 
in the discussions of the cabinet, March 3, 1820, was particularly clear that 
no condition regarding s'avery could bind any state after its admission, 
whether one from the Northwest Territory or any other. John Quincy 
Adams' horror of slavery controlled his reasoning respecting "compacts" — 
ante. n. 135. 



within the sphere of state power .... when a new State is admitted into 
the Union, it is so admitted with all of the powers of sovereignty and 
jurisdiction which pertain to the original States, and . . . such powers 
may not be constitutionally diminished, impaired or shorn away by 
any conditions, compacts or stipulations embraced in the act under 
which the new State came into the Union, which would not be valid and 
effectual if the subject of congressional legislation after admission. 27 " 

This termination of the long controversy suggests that the im- 
perialistic intent of Gouverneur Morris in so framing the Constitu- 
tion's provision as to permit of conditions creating inequalities among 
the states has not appreciably gained, and may have lost, strength 
since 1787. 2S0 

Apart from that there are two other matters which should not 
here be ignored. The first is a fact : that the question of the legality 
of the conditions imposed by the Ordinance of 1787 upon new states to 
be created in the Northwest Territory is totally different from the 
question of the legality of conditions imposed upon states admitted 
under the provisions of our present Constitution. The second matter 
to be considered is a question. It is suggested by the probability that 
some members of the old Congress shared the views of the Morris 
group in the Federal Convention respecting the undesirability of plac- 
ing new states on an equality with the original members of the Union. 
The question is: Does the record of debates in Congress while 
drafting the Ordinance of 1787 reveal any attempt to evade the terms 
of Virginia's cession? 

(1) As respects the first matter, the legality of the imposed con- 
ditions was dependent on the nature of the compacts made by the ced- 
ing states with the Confederation. The nature of those compacts has 
repeatedly been emphasized. 2S1 It is perfectly plain that one of them 
was — as shown by the quotations just given 28 -' — that the territory ceded 
by the states to the Confederation should be used to develop indepen- 
dent republican states, prospective members of the Confederation and 
equals of its original members. No condition involving inequality 

2T»Coyle v. Smith (1910), 221 U.S. 559, at 567, 568, 573. There had been 
various strong dicta pointing in earlier cases to this conclusion, such as that 
of Chief Justice Chase in Texas v. White (1868), 74 U.S. 700, at 725: 
"there can be no loss of separate and independent autonomy to the States 
through their union under the Constitution." 

280 Ante cxxvi-viii. 

2 «i Ante xci, cxx-xxi, n. 205. 

282 Ante lxxii, nn. 62-63. Compare post nn. 171-73 of Sec. IV. 



could by any possibility have been reconciled with the compacts under- 
lying the Ordinance. Taking that instrument as actually drafted, 
containing various conditions of supposedly binding and even perpet- 
ual nature, it is clear that actually to have adapted its provisions to 
the Constitution, as the act of re-enactment in 1789 purportedly did, 
would have required at the very least a careful stud}' of the latter 
instrument ; and that this would have revealed discrepancies between 
the two. 283 It is equally clear that a perfect adjustment between them 
was impossible, since it would have required perfect prescience of our 
constitutional development. The men who sat in the Congress of the 
Confederation and in the Federal Convention and in the early Con- 
gresses of the new Union were all more or less subject, intellectually, 
to theories of social compact and natural law. In order to adapt the 
Ordinance to the new constitution, as we understand it, they must have 
had ideas regarding the relation of the new Union to the old, and re- 
garding the relation between legislative and constitutional provisions, 
on which clarity was lacking in the general thinking of their day. 
Ideas on the last matter were then very vague. The delusion existed 
that the compact provisions of the Ordinance were of a constitutional 
character; that they were in fact, as "Articles of compact between 
the Original States and the People and States in said territory, . . . 
forever unalterable, unless by common consent." To that conception 
many references must perforce be made later.-' 84 It may possibly have 
persisted among the generality of lawyers down to the middle of the 
last century. Nevertheless, since the decisions by the Supreme Court 
were readily ascertainable, its continuing general acceptance by his- 
torians thereafter can only be regarded as inexcusable. 285 

(2) Returning now to the second matter of inquiry. The ulti- 
mate admission of new states having in earlier declarations by the old 
Congress been assumed to be desirable, and such admission having been 
made by its compact with Virginia legally binding, it is clear that 
actual evasion of the requirement would have been impossible. The 
inquiry is merely whether there is any evidence of an attempt to 
evade or qualify it. The report of the committees that first under- 
took the task of framing a government for the Northwest Territory 

■^^ Ante n. 180. 

as* Post Sec. Ill, passim; perhaps particularly clxxxvi-ix, cxciv-cciii. 

ass post nn. 28. 42, 67 of Sec. III. nn. 176. 1S9. 208 of Sec. IV. 



contained no language clearly intimating that the organization of ''in- 
dependent states" therein should eventuate in their admission to the 
Confederation. However, the Ordinance ultimately reported (by 
Jefferson) not only declared explicitly for both admission and equality, 
but provided imperatively when admission should be available as a 
right. 286 In 1786, when Monroe's committee undertook to revise the 
plan of government that Jefferson's committee had prepared, they 
prefaced their plan as submitted in their first report (which became 
in revised form the Ordinance of 1787) with a reference to the neces- 
sity of satisfying the conditions of Virginia's grant, and logically 
added that a plan of "temporary" government required an indication 
of "the period at which it shall expire and" the "states" for which 
it was designed shoukl "assume their form and equal Station in the 
Confederac.y" ; and likewise required a statement of "the Conditions 
upon which they shall ultimately obtain that important privilege."- 87 
The great importance of the subject in the committee's opinion is fur- 
ther indicated by the fact that at the end of the report they added the 
following statement : 

The object for which this temporary government is instituted 
being to protect the persons and rights of those who may settle with- 
in such districts in the infancy of their settlement, the United States 
look forward with equal anxiety to the period at which it shall cease 
and they be admitted, agreeably to the Condition of the Acts 288 of 
Cession into the Confederacy. This shall be the ease so soon as they 
shall respectively obtain a common interest in its affairs, with such 
mature age and strength as to be able to act for themselves, the high- 
est and most satisfactory evidence of which is, the number of in- 
habitants they will contain. 289 

The committee stated the matter as one of justice to the new states, 
but its members and all the other delegates in Congress must have 
realized that to some extent, at least, the political balance (and many 
thought the safety) of the old states was also involved. 2 "" 

In the course of the proceedings in Congress some changes were 

2 86 See pout ecliv-vi. 

2" March 24, 1786— Jour. Cont. Cong. 30: 251. 

288 in different reports by the committee the conditions were sometimes 
referred to as imposed by more than one state — ibid. 30: 251, 31: 669 (May 
10, Sept. 19); sometimes, correctly, as imposed by Virginia — ibid. 402 (July 

2"' May 10, 1786— ibid. 255; italics added. 

290 See post eclxxxvi-xevi. 



made in the instrument which, considered alone, might seem to evince 
an inclination to evade open commitments, at least, on the compact con- 
ditions. The prefatory statement partially quoted above, and the final 
statement of purpose and promise more fully quoted survived through 
only one revision. 2 " 1 The title was shortened so as likewise to omit 
all reference to ultimate statehood. 2 " 2 Nevertheless the answer to the 
question before us must be negative. For all these changes were 
matters merely of style and redundancy so long as the text of the 
Ordinance provided explicitly for admission, on definite conditions, 
to the Confederation ; and this it did from beginning to end of the 
debates. The ordinance of 1784 had so provided ; the attainment of 
a definite population was the sole precondition to admission on an 
equality with the original states. 293 The provisions of the fifth com- 
pact article of the Ordinance of 1787 were equally definite and equally 
imperative. 294 And though the preamble to the compact articles 
merely declared a purpose of admitting the new states "at as early 
periods as may be consistent with the general interest" this was off- 
set by a provision in the fifth article for admission when population 
attained a definite number, and admission prior to attainment of such 
population if consistent with the general interest. 293 

29i That of July 13, 1786— ibid, 30: 402-3. But it seems possible that the 
original continued to have a preamble; compare ibid. 673 n. 1. 

202 The original title was: "The plan of a temporary government for 
such districts as may be laid out by the United States, upon the principles 
of the acts of cessions from individual States, and admitted into the con- 
federacy" — ibid. 30: 252. In the second revision this was made to read 
"such districts or new states as shall be laid out" — revision of Sept. 19 — ibid. 
31: 669. It was next made to read, "for the government of the Western 
Territory . . . until the same shall be divided into different States" — thus 
on May 10, 1787 — ibid. 32: 281 and n. 1. And finally the reading became 
simply: "An Ordinance for the temporary government of the Territory of 
the United States North West of the River Ohio." This was the last form, 
as it was passed on July 13. 1787— ibid. 313, 334, 343. 

293 ibid. 26: 119, 277. The character of the Ordinance of 1787 in this 
respect was utterly different — ante at notecall 275 and j)Ost at notecall 296. 

204 "There shall be formed in the said territory not less than three nor 
more than five States. . . . Whenever any of the said States shall have sixty 
thousand free inhabitants therein, such State shall be admitted ... on 
an equal footing with the original States, in all respects whatever; and shall 
be at liberty to form a permanent Constitution and State Government; pro- 
vided the Constitution and Government so to be formed, shall be Republican, 
and in conformity to the principles contained in these Articles; and so far 
as it can be consistent with the general interest of the Confederacy, such 
admission shall be allowed at an earlier period, and when there may be a 
less number of free Inhabitants in the State than sixty thousand" — Carter, 
Territorial Papers. 2: 49. 

295 lUd. 45. 



The express provisions of the Ordinance, then, quite as was re- 
quired b3 r both good faith and consistency, required admission, and 
assumed a prompt admission, of new states. 

Moreover, admission on an equality with the old states was ex- 
pressly stipulated. But that was subject to a proviso — that their con- 
stitutions should be "in conformity to the principles contained in" 
the Ordinance's compact articles; and these included various require- 
ments that were not authorized by the compact between the Confed- 
eration and Virginia. It also contained others to which the original 
states were not subject — particularly the antislavery provision and 
the clause prohibiting impairment of contracts.-" 11 True, had the 
Confederation continued in existence, these provisions — being un- 
authorized by the Articles of that Union and unauthorized by extra- 
constitutional compacts between it and the old states — would not have 
bound the new states by virtue of the proviso in the Ordinance. 
Nevertheless, there would have been a seeming inequality, precisely 
as such seemed in many cases to exist later under the Constitution 
down to very recent years ; an attempt to create inequality and a be- 
lief that the attempt was permissible and successful. 

Is this to be regarded as an attempt to "evade" the requirement 
that the new states be the equals of the original states? Is it possible 
that the inconsistency was unperceived by the members of Congress? 297 
Surely one cannot assume this as respects such extraordinary condi- 
tions as those prohibiting slavery and the impairment of contracts. 
Each would make a state subject to it strikingly unequal to the orig- 
inal states. Every member of Congress must have known that the 
tacit agreements between states and Union respecting the western 
lands covered no such matters. As already said, the expiring Con- 
gress of the Confederation acted as though it were a constitutional 

S96 See post clxxxi sea. for a brief statment of the compacts. 

2»t Compare ante at notecall 213 and references in nn. 214, 231. It is 
a fact that down to 1912 the same inconsistency existed in many cases when 
states were admitted on a declared equa'ity with all others, yet each osten- 
sibly subject to conditions (in the enabling act or in the very act of admis- 
sion) that necessarily, if binding, would create inequality; and the many very 
able lawyers who sat in Congress either ignored pronouncements of the 
Supreme Court that presaged their ultimate holding that such conditions 
were nullities, or considered their moral effect nevertheless desirable, or 
were unable to educate a majority of their colleagues — at all events the 
practice continued. 



convention co-operating with the Federal Convention,- 1 "* but it.s 
actions could not alter its true character. 

Jefferson's ordinance of 1784, as he first drafted it, provided that 
both the temporary and permanent governments of the "States" 
organized in the new federal lands should be based on certain stated 
principles, one being 1 a prohibition of slavery after 1800 "in any of 
the said States." 200 In other words, no distinction was made between 
the status of a territory and that of a Union-state. Nathan Dane went 
further in the Ordinance of 1787 in (supposedly) making the prohibi- 
tion of slavery immediate — and, again, forever. 

It seems impossible to avoid a conclusion that the equality of 
states seemed less important than even trivial but immediate objec- 
tives. The Supreme Court was compelled to save state equality from 
legislative indifference. 


There are other problems of our political development which are 
illustrated by the peculiar terminology of the state papers of the 
Confederation era. 

It has been seen that all parties to the controversies over western 
lands contemplated from the beginning the creation therein of sepa- 
rate and distinct "states." 300 By the special compacts between the 
Union and Virginia — and later, under the new Constitution, with 
North Carolina and Georgia — Congress became legally obligated to 
admit states/ 101 Madison's motion in the Federal Convention respect- 
ing the federal territory was "to institute temporary governments 
for new States arising therein." 302 

From what moment were these communities, designated as states, 
to exist? And when were they to have equality with the old states? 
Rewording these questions in general form, and with reference to 
later times: When the constitutional convention of a territory, act- 
ing under an enabling act of Congress, has framed a constitution, and 
the people ratify it and elect "state" officers as therein provided, does 
a "state" come into existence — which is thereafter, as such, admitted ? 

298 Compare ante cxxiii seq. and post clxxxvi seq. 

299 Jour. Cont. Cong. 26: 118-19. 
3°° Ante lxii, clix-lx. 

301 Ante following notecall 53 and at notecall 63. 

302 Ante at notecall 122. 



So also if the people of the territory adopt a constitution and organize 
an ostensible "state" government thereunder, without an enabling 
act, and apply for admission — as has been done in the case of various 
members of the Union? 103 

These questions are primarily matters, manifestly, of pure politi- 
cal theory. Most of the difficulties presented by them disappear, how- 
ever, if one first removes the ambiguities in the word "state." A 
territory is a state in the sense of political theory. So also is the new 
community organized under a constitution that provides for a future 
government independent of control by Congress. Recognition of it as 
presently an entity of a new status is implied in the wording of vari- 
ous public documents, including some enabling acts which have de- 
clared that the "state government" thereunder created shall remain 
"in abeyance" pending admission to the Union. 304 Upon admission 
it acquires a third status, which is defined by its relation to the Union 
and to all other member states as fixed by the federal Constitution. 
This recognition of a state, of characteristics intermediate between 
those of a territory and of a Union-state, has a large history in con- 
gressional debates. It has appeared chiefly in discussions of the ques- 
tion whether the vitalizing act in creation of a "state" — the dispu- 
tants having in mind a Union-state — is the act of admission to the 
Union or the acts of adopting a constitution and electing government 
officials by popular vote. The question becomes very simple upon re- 
moval of ambiguit}" from the word "state." Each of the two acts is 
the constitutive and vivifying act of a distinct entity. 

One — a state of temporary character — seems clearly to arise when 
the act creating it is done in conformity with an enabling act of Con- 
gress under the new-states clause of the Constitution. If, on the 
other hand, the actions of the territorial inhabitants are without 

so3 in the cases of Vermont, Kentucky, Tennessee, Maine, Arkansas, Michi- 
gan, Texas, Florida, Iowa, California, Oregon, Kansas, and West Virginia. 
The cases of the first four, likewise of Texas and West Virginia, are mani- 
festly distinguishable from the others. Even when a state is organized 
under an enabling act it may be very difficult to fix the date at which it be- 
comes a member of the Union. Five dates have been approved, by different 
persons, in the case of Ohio; see J. E. Campbell, "How and When (?) Ohio 
Became a State" (1925), Ohio Archaeological and Historical Publications, 
34: 45-47. 

•J04 Compare that for Oklahoma, 190G, U.S. Stat, at Large, 34: 277, sec. 
21; and the phraseology, equivalent in substance, employed in the enabling 
act of 1911 for New Mexico and Arizona, 'ibid. 36: 561, sec. 5 and 572, sec. 23. 



sanction of an antecedent enabling act they clearly lack any con- 
stitutional basis. They have very often been characterized in the de- 
bates of Congress as "revolutionary" actions. On the other hand, 
particularly in the decades when "squatter sovereignty" enjoyed 
favor as a means of settling the slavery problem in the territories, 
such actions were defended by able lawyers as legitimate." 05 Discus- 
sion in Congress of "states" of this intermediate character has oc- 
curred both in debates over the admission to the Union of communities 
organized without enabling statutes and in debating the status of 
southern states during their "reconstruction" after their alleged 
secession from and before their so-called re-admission to the Union. 
It has received virtually no attention by writers on our political sys- 
tem. 300 

The other act, which creates a permanent Union-state, could be 
taken only under the new-states clause of the Constitution. 

In another way the foregoing questions and distinctions have 
directly impinged upon the realities of our constitutional history. Xo 
community has ever desired to continue in the anomalous position of 
the intermediate status. Continuance in it has nevertheless in some 
cases been fairly prolonged, most notably in the cases of Michigan 

305 if there were any constitutional basis for independent action by 
territorial inhabitants it could only be, it would seem, the reservation "to 
the people/' by the Tenth Amendment, of powers neither granted to the 
United States nor reserved "to the States." The general understanding has 
always been that this meant — reserved to the state governments so far as 
they be authorized and competent by their existing organizations to exercise 
the powers in question; and, so far as they be not so authorized or com- 
petent, to the people of the respective States. There are good reasons why 
the interpretation, "to the whole people within the national limits" (includ- 
ing the territories) would not have been possible. (1) "People" was un- 
doubtedly used synonymously with what we today call "citizens" — compare 
remarks in Dred Scott v. Sanford (1857), 60 U.S. (19 How.) 393, at 404, 411, 
576, 580. (2) It was the citizens of the original states who, in their conven- 
tions, adopted the Constitution and the first ten amendments, and reserved 
the rights in question — to themselves (and citizens of other states). (3) 
Before 1868 the basis of national citizenship was state citizenship — whether 
or not a positive act of the federal government was necessary to make a 
citizen of a state also a citizen of the United States. Since 1S68 persons 
born in a territory have been citizens of the United States (and of any state 
in which they thereafter reside). But, to say the least, it would be extremely 
difficult to find reasons for the view that before 1868 a territorial inhabitant 
could have had federal citizenship. 

son w. W. Willoughby, Constitutional Laic (2d ed.), 1: 407, refers to this 
fact and to its application by Orestes A. Brownson, in his American Republic: 
Its Constitution, Tendencies and Destiny (1886), to controversies of the 
Reconstruction era. 



and of states in the far Northwest. It is not an exaggeration to say 
that the acts of the people in Michigan amounted to arrant and suc- 
cessful revolution/' 07 The question whether the Union would permit in- 
definite continuance of such position has never arisen. For reasons 
lying in the background of the Civil War, no doubt can exist that 
such continuance would not be tolerated. And — to the point of pres- 

sor The Ordinance of 1787 explicitly described the boundaries of three 
states to be erected within the Northwest Territory, and expressly reserved 
to Congress power to create either one or two additional states north of the 
three prescribed — Carter, Territorial Papers, 2: 48-49. From 1805 to 1818 
the western boundary of this northern area was a north-south line "through 
the middle" of Lake Michigan; and in 1818 and 1835 a great area was added 
on the west. The territorial legislature, in preparation for setting up a 
state in the original eastern portion (without an enabling act of Congress), 
declared all congressional enactments relative to elections to the legislature 
and election of the Territory's delegate to Congress "to be applicable" to 
the western portion (March 1835); and by further acts made this mean 
applicable to that portion only. The result was to deprive the inhabitants 
of the entire Territory of any legislature; for its federal acting-governor 
refused to meet with the body chosen solely for the western portion and none 
was chosen for the eastern. A convention framed for the latter portion a 
constitution which was approved by the people, and the state government 
set up at the same time thereunder supposedly became effective in Nov. 
1835. In April 1836, Congress acquiesced in the division of the Territory by 
organizing the western portion as the Wisconsin Territory as of July 3. 
By an act of June 15 it conditionally accepted the proffered constitution of 
Michigan and, the conditions being satisfied, admitted that state by act of 
Jan. 26. 1837. 

In the meantime a federal acting-governor was in the Territory until 
removed in June 1836 to Wisconsin. Possibly, until then, both he and the 
"state" governor exercised executive power; thereafter, the latter alone. 
By an act of March 1836 the supposed "state" legislature declared "abolished" 
the judicial offices and system established by Congress in the Territory. In 
the preceding month the territorial federal judges had been reappointed 
and did not take the oath prescribed by the "state" constitution. Its legis- 
lature established another judicial system. All the judges of the Supreme 
Court of the Territory and the federal circuit judge thereof favored the 
"state" party, and two of them accepted appointment to the state Supreme 
Court, which began to function in July 1836. In addition to all this the 
legislature met three times in 1836 and passed many supposed laws. In a 
case involving the validity of one of these statutes, and also the validity of 
an act of one of the territorial judges in 1836, it was ultimately held by the 
Supreme Court of the state (1843) that both acts were valid. On further 
appeal to the Supreme Court of the United States that remarkable decision 
was allowed to stand, since the Supreme Court held that it had no jurisdic- 
tion under the Judicature Act. Under that, a statute complained of as the 
basis of the Supreme Court's jurisdiction must be the act of a "state"; which 
word that Court construed to mean t'nion-state. A complaint against an 
enactment of a "state" of any other kind could not be considered. The 
validity of another statute of the pre-Union "state" was passed upon by 
the Supreme Court of Ohio in 1851 and held by it to be a complete nullity. 

See W. W. Blume, ed., Transactions of the Supreme Court of the Terri- 
tory of Michigan. 1805-1886 (6 vol. 1935-1940), 6: xlv-liii. 



ent discussion — the same reasons greatly affected the form given to 
our territorial system when it was first framed. 308 

Curious differences are noticeable, as respects the use of the word 
"state," between the ordinances of 1784 and 1787. Nor can these be 
regarded as merely stylistic variations, unavoidable in documents of 
different (and composite) authorship. A special significance seems 
to attach to them. 

In the earlier statute the word was employed to cover the stages 
of both temporary and permanent government. 30 ' 1 The phraseology 

308 The problem was complicated and puzzling, and compromise was in- 
evitable. On one hand there was the prevalent idea, recognized in some 
state constitutions, that free emigration and even the setting up of new states, 
was a natural right — ante n. 26!). The danger of a state outside the Union, 
such as Rhode Island or Vermont, was recognized — post nn. 311, 312; yet only 
extremists ventured to declare that adherence to the Confederation should be 
forced. The threatened danger to large states of similar disruption had a para- 
lyzing influence — post n. 241 of Sec. IV. All parties hesitated on any addition 
to the Confederation because of the unpredictability of its effect upon the 
sectional balance of power. Until after the Constitution had been adopted 
it was not in the least evident that all states would submit to union; and, 
indeed, the four that joined after that instrument had gone into effect in- 
cluded the two most powerful of the country. So far as regarded the likeli- 
hood that any state would desire to stay out of the new Union, Nathan Dane 
would have us believe that illiberal government was given to territories in 
order to lessen such a likelihood — post cccxxv. The case of the Western Re- 
serve was an early evidence of its extreme improbability — ante lxxxi-iii; 
and later cases, like those of Michigan and Wisconsin — which, after warlike 
fulminations subsided into calm as the price of statehood — post, cciv-vii — 
made clear its virtual impossibility. In view of all these entangled uncer- 
tainties it is not surprising that the Federal Convention accepted Gouverneur 
Morris' completely noncommittal provision — "new states may be admitted 
by the Congress into this Union." 

These considerations were again forced upon men's minds when the 
slavery controversy raised possibilities of secession. In the debates of 1849 
on California Senator Berrien of Georgia, assuming a state government to 
have been erected in a territory under an enabling act, asked: "Can Con- 
gress reduce them to their territorial condition?" And he answered the 
question (doubtless from discretion) as for Missouri in 1820, thus: "If Con- 
gress imposed terms to which she was unwilling to submit, she might, as 
a sovereign State, though not as a State of this Union, stand aloof, and Con- 
gress had no power to reduce her to her territorial condition." Whereupon 
the following remarks were added: Senator Bell (of Tennessee) — "No 
State can exist, in any Territory of this Union, unless it be created by Con- 
gress, until it is admitted into this Union. . . . Unless we relinquish our 
sovereignty over it." Senator Berrien — "The sanction which is given to 
the people of a territory to form a constitution and State government is 
the relinquishment of our sovereignty quoad hoc." Cong. Globe. 36 Cong. 2 
Sess. App. 255. 

3oa The first and second drafts, March 1 and April 23, 1784. are in the 
Jour. Cont. Covg. 26: 118-20, 275-79. See comments upon some later con- 
sequences of Jefferson's terminology, post n. 125 of Sec. III. 



from beginning to end implied that in the Northwest "states" could 
exist outside of the Confederation, precedent to admission thereto. 
Nor was the word used in the colorless sense of political theory, but 
with abundant connotations of American democracy. A "state" was 
to exist — with self-government qualified only by congressional main- 
tenance of peace and order pending local organization — from the 
outset ; as soon as they desired, its inhabitants could organize under 
the constitution and laws of one of the original states, members of the 
Confederation ; when they numbered twenty thousand they could 
establish their own permanent constitution and government ; and upon 
attaining a certain larger population such "states" should themselves 
be admitted into the Confederation. 31 " The autonomy of these states 
would have been vastly greater than that of our territories as or- 
ganized under the Ordinance of 1787 (and continued under all sub- 
sequent legislation), which subjected them to centralized congressional 

Jefferson's usage of the word "state" was common in the pro- 
ceedings of the Continental Congress, wherein contemplated units of 
frontier government were, as has been said, constantly referred to as 
new, republican, distinct, or independent "states." Moreover, under 
the circumstances of the time the usage was inevitable. All the origi- 
nal thirteen states were wholly separate entities until the legal con- 
summation of the Confederation in 1781, and for some time thereafter 
their separateness was but very slightly impaired by the consultation 
on matters of common concern for which alone they were "united" 
in the Confederation. Originally, the Congress of the Confederation 

aw Ibid. In other respects than the measure of self-government allowed 
them, these "states" wou'd have been, of course in the same position as 
the territories created under later legislation. That is, they would have 
been "part of the United States of America" ( first of Jefferson's drafts, ibid. 
118) or "part of the confederacy of the United States" (final draft, ibid. 276) 
in the geographical sense, having been within the collective boundaries fixed 
by the treaty of peace and so part of the various states united under the 
Articles. It seems clear, however, that the ceded territory could have been 
no "part of the United States" governmentally unless one accepts the argu- 
ment hereinabove made respecting amendment of the Articles {ante lxxxiv 

Distinctions in our present constitutional law (with "incorporated" and 
"unincorporated" territory held by the Union, and with territories classified 
as "organized" and "unorganized") have become complicated with respect 
to the phrase "part of the United States" in the governmental sense. See 
W. W. Willoughby, Constitutional Law (2d ed.). 1: ch. 26-28, 30-31. See 
also ante n. 232 on the "extension" of the O " tution to the territories. 



was simply, as the constitution of New Jersey of 1776 called it, their 
''Supreme Council." And it is difficult to see wherein its original 
nature was later altered except in so far as one accepts the arguments 
hereinabove offered with regard to the implied amendment of the 
Articles in relation to territory acquired by the Confederation. Again, 
in further explanation of the idea that "states" might exist outside 
the Confederation, although geographically within the united states. 
Vermont never signed the Articles; and its situation was little dif- 
ferent from Kentucky's. It may be added that seemingly only one 
member of the Federal Convention went so far as to declare that 
Vermont should be compelled to enter the Confederation; 311 — although 
the danger of a long-continued independence of such a state, at least 
on the western border, was doubtless present to not a few minds. 312 

It is quite clear, then, that the reasoning implicit in the usage 
of the word "state" by Jefferson, and in other papers of the Congress, 
was quite in accord with the political facts of that day. It was for 
the most part deliberately abandoned in drafting the Ordinance of 
1787 wherein the distinction between a "territory" in the technical 
sense and a (Union-) state was carefully observed. 313 

Had such states as were proposed b} r Jefferson been actually 
created, our constitutional system from its inception would have in- 
cluded political entities of the class indicated under the second of the 
two abstract questions propounded at the beginning of this discus- 
sion. 314 His ordinance is in that respect unique among our important 
state papers. But the brief life of the enactment 315 deprived it of prac- 
tical significance. Its terminology has interest merely as bearing on the 
question of political theory here under scrutiny. Its substantive 
content has much greater interest as evidencing the gap between 
Jefferson's liberalism and the illiberalism of the Ordinance of 1787. 316 

In this latter instrument, also, there was language which implied 

311 Farrand, Federal Convention, 2: 456. Rhode Island's acceptance of 
the Constitution in 1790 seems to have been greatly influenced by a fear of 
coercion, in addition to the likelihood that some towns in the state might 
secede and voluntarily join the Union. See F. G. Bates, Rhode Island and 
the Formation of the Union (1898), 192 seq. 

312 See Washington to Madison, March 31, 1787 — Writings (Fitzpatrick 
ed.), 29; 192; also post ccliv, ccxcv seq., ccclvi-vii. 

sis See i)ost n. 125 of Sec. III. 
si* Ante lvi-vii. 
sis Post cclxii-iii. 
sis Post cccviii. 



that "states" could exist outside the Confederation. It provided that 
''states" should be formed "in" the Northwest Territory, and that 
whenever any "of the said States" should have a certain popula- 
tion it should "be admitted by its Delegates into the Congress . . . 
on an equal footing with the original States, in all respects whatever ; 
and ... be at liberty to form a permanent Constitution and State 
Government. " 31T This language (Nathan Dane's) preserves essen- 
tially Jefferson's language of 1784; and doubtless on. the theory that 
if a "state" is to be admitted, it must be such before admission. No 
state could exist until after the inhabitants were politically organ- 
ized ; nor could they be the latter — and much less be recognized as 
having the republican form of government which the Constitution 
guarantees them (and the other states) from the moment of admis- 
sion — unless organized under a constitution with complete political 
personnel ready for operation. Logic compelled Jefferson and Dane 
(who in general abandoned Jefferson's terminology) to employ the 
same language. The plan of authorizing organization as a state under 
an enabling act of Congress seems to have been an afterthought, ap- 
plied when the first new state in the Northwest Territory (Ohio) was 
organized in 1802. 

As respects Dane's terminology it is to be noted that while the 
word "state" occurs not once in the non-compact portion of 
the Ordinance dealing with the actual government of the Ter- 
ritory, it occurs fourteen times in the articles of compact which looked 
primarily toward the future. 318 Moreover, in the provisions of those 

si" Carter, Territorial Papers. 2: 49. The language of North Carolina's 
deed ceding to the United States in 1790 the land that became the Southwest 
Territory was worded thus: "the territory so ceded, shall be laid out and 
formed into a State or States . . . the inhabitants of ichicli shall enjoy all 
the privileges" granted to those of the Northwest Territory by the Ordinance 
of 1787; and Congress, upon accepting the cession "shall at the same time 
assume the government of the said ceded territory," etc. — ibid. 4: 16; 
italics added. 

sis Their purpose, stated in their preamble, was "to provide for the 
establishment of states, and permanent government therein, and for their 
admission to a share in the federal councils." They were to be "the basis 
for all laws, constitutions and governments, which forever hereafter" should 
have force in the Territory. They dealt with the rights of individuals 
against government of all stages; with creation of "states" in the future 
(though employing the words quoted above in the text) ; and with certain 
continuing relations of the Confederation, on one hand, to the territory and 
such future states on the other. 

Variant usage of the word "state" is not the only peculiarity distinguish- 



articles regarding' relations to the Confederation the distinction was 
elearty made between "the said territory, and the States which may 
be formed therein." Hence, although the Ordinance provided that new 
states should be formed "in the .said Territory" it is reasonably clear 
that its draftsman (Dane) intended to apply the term "state" only 
to units organized from the Territory's area for immediate admission 
to the Confederation, and that the admission of all the states con- 
templated would exhaust the area and end the existence of the Ter- 
ritory. All of the Ordinance's language was consistent with that view, 
notwithstanding that the passages first mentioned would more easily 
carry a contrary meaning. And such was, of course, both the con- 
struction put on the Ordinance and the actual historical result. 

However, the other interpretation of portions of the enactment 
was possible, and such interpretation, when made, was strengthened 
by the original delusion that the Ordinance had perpetual, or constitu- 
tional, force. To attribute to it that quality was to say that it, of 
itself and directly, controlled the admission of states from the North- 
west Territory ; — and likeAvise of states organized from various other 
territories to which the Ordinance was later extended by acts that 
granted to their inhabitants 310 "all the privileges benefits and advan- 
tages" accorded by it to the inhabitants of the Northwest Territory. 
And in that connection the fact was important that the compact arti- 
cles were expressly declared to be made "between the Original States 
and the People and States in the said territory." This was the essen- 
tial basis of the argument made, in various early eases, that the act of 
Congress admitting a state into the Union was not a prerequisite to the 
creation of the state and the organization of its government as such. 
Indeed, the extreme argument, based upon the compact, was that even 
the act of admission was a mere formality. The basis of these argu- 
ments, supposed to be found in the Ordinance, lost all force as soon as 
it became clear that the Ordinance was a mere statute, of no constitu- 
tional force. The questions themselves, however, have a long history 

ing the terminology of the two ordinances. The word "district" does not 
occur in Jefferson's ordinance. It occurs twenty-one times in the non-com- 
pact portion of the Ordinance of 1787 (generally in a governmental, occa- 
sionally in a geographical, sense); but it occurs only twice in the compact 
division. The word "territory" (with about equal frequency in the two 
senses indicated) occurs ten times in the compact portion and three times 
in the non-compact portion. 

sin See ante nn. 207-8 and post nn. 68-69 of Sec. III. 



in the debates of Congress as regards the situation under the Constitu- 
tion. - 

The two concrete questions stated at the beginning of this section 
have now been considered. The discussion has thrown some light on 
the more abstract questions that were also there stated. The first of 
these questions was: Does the provision, "New States may be ad- 
mitted by the Congress into this Union," permit it to deny statehood 
indefinitely long or altogether to organized political communities 
within the boundaries of the Union and governed by it f This question 
still has significance as respects territories not within our continental 
boundaries, such as Alaska, Hawaii, and Puerto Rico. The second 
question was: What is the meaning of the word "state" in the quoted 
constitutional clause?— and, in particular, could it include a commu- 
nity of a status intermediate between that of a territory, as defined by 
our past history, and that of the original members of the federal 
Union ? 

These abstract questions lie as a puzzle in the background of our 
constitutional law. It is obvious that answers to them should depend 
on the appraisal of imponderables — traditional national ideals and 
ultimate national interest. It is equally obvious that the undiscrimi- 
nating will always confuse national interest with ponderable gains in 
land and resources, and other tangible economic advantages of the 
moment. The past situations — particularly the treaties with France 
in 1803, with Mexico in 1847, and with Spain in 1899 — which suggest 
them as historical problems presented contingencies that allowed of no 
delay for consideration of political ultimates. The tendencies toward 
"imperial" expansion visible in our history since 1898 make likely 
other situations of which no final disposition can be made without 
giving, ultimately, explicit answers to the questions stated. 

Such answers may seem, to some, to be involved in our past action 
in organizing into states of the Union all continental territory acquired 
since 1803. That assumption necessarily involves the assumption 
that our national traditions have remained and will remain unaltered. 
It is true that all our continental territory has been incorporated into 
the Union. It is also true that we have incorporated that territory as 
states declared (save for a few ostensible restrictions on political sover- 
eignty which were in fact illusory) to possess equality with the origi- 
nal thirteen. And this we have done seemingly without conscious atten- 



tion to the political doctrines of our Revolutionary era, yet precisely as 
conscious attention to those doctrines would have dictated. And to 
act thus, unconsciously, exactly as conscious attention to them would 
have required is surely the strongest possible evidence of their continu- 
ing vigor. Indeed, if the three noncontinental territories above men- 
tioned be admitted as states, it will only add to abundant evidence of 
other kinds that we are more democratic than our Revolutionary 

The fact is that at the present moment we hold territory that is 
"unincorporated" (in technical legal language) in the Union; and 
are likely to hold more ; and that the status even of the territories 
above named remains variant and obscure as regards citizenship and 
the extension over them of the constitutional guaranties of funda- 
mental personal rights. And this is true to an even greater extent 
of various unincorporated territories. B2 ° 

All the questions under attention have received inadequate 
national consideration. The first question was debated in Congress 
with some vigor in connection with the admission of five or six states. 
Some aspects of the second question received attention in the same 
debates. They were also seemingly involved — but, it is believed, not 
actually — in the events and congressional debates of the Reconstruc- 
tion years. 

To discuss here the later aspects of their history would obviously 
be inappropriate. On the other hand the questions are implicit in the 
vague phraseology of the Constitution. Their discussion in the early 
period of our history when political fundamentals were the subject of 
endless controversy was based almost wholly on that phraseology. The 
state papers of the Confederation era throw considerable light on the 
attitudes of those who participated in the legislation of that day and in 
the framing of the Constitution. For this reason it has seemed worth 
while to consider, to the extent merely of making clear the relevant 
data of the Union's natal years, these problems — seemingly curious and 
remote, but essentially of basic importance — of our constitutional 

*o See W. W. Willoughby, Constitutional Lair (2d ed.), 1: ch. 30, 31, 32. 





An understanding of subsequent discussion requires at the outset 
a statement of the contents of the Ordinance's compacts. They con- 
stitute the third and final division of the enactment, and the drafts- 
man, Nathan Dane, prefaced them with an impressive statement of 
their purpose, as follows : 

And for extending the fundamental principles of Civil and re- 
ligious liberty, which form the basis whereon these Republics, their 
laws and constitutions are erected ; to fix and establish those prin- 
ciples as the basis of all laws, constitutions and governments, which 
forever hereafter shall be formed in the said territory ; — to provide 
also for the establishment of States, and permanent government there- 
in, 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 . . . 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 

Before setting out the supposed compacts included in the Ordi- 
nance it will promote understanding of what follows if a word be said 
of the nature of compacts. Were it not for the utter disregard which 
writers on the Ordinance have shown for the meaning of the word, it 
would be superfluous to point out that a compact in the true sense 
(the fictional "social compact" not being such) is a contract. The 
Constitution provides that Congress may consent to contracts between 
states of the Union, and such a contract is referred to by it as an 
''agreement or compact" (Article I, Section 10). Such contracts, while 
the states were independent, would have been treaties. 

1 C. E. Carter, ed., Territorial Payers of the United States (1934 ), 

2: 45 seq., with valuable notes. J. A. Barrett, The Evolution of the Ordi- 
nance of 1787, with an Account of the Earlier Plans for the Government of 
the Northwest Territory (1891), 60-68, gives information regarding analogies 
to and possible sources of the compacts. 



The Ordinance was in process of formulation for more than a year, 
but with few and trifling' exceptions the content of the six compact 
articles had not been included in any draft of the instrument until 
Nathan Dane prepared, between July 9 and July 11, his draft for 
the first reading on the latter date — the slavery article being separately 
moved by him and adopted on (seemingly) the twelfth. The sub- 
stance of two of the compact articles (the fourth and fifth) had 
earlier been approved by Congress; but merely by Congress. The 
reader is asked to agree, on the basis of mere common sense, to three 
propositions. One : — that a binding agreement or compact in a docu- 
ment (we are not talking of any fictional "social compact' ? ) can only 
exist between definite parties ; that in order for mutual promises to 
be binding, the persons making them must be actual and the promises 
actualities, evidenced bj 7 acts sufficient to signify the agreement which 
the parties desire to make. Another : — that of the three supposed 
parties, as indicated above, to these supposed compacts, the amor- 
phous and changing body of inhabitants, present and future, of the 
Northwest Territory could not in common sense be such, nor could 
nonexistent states, the first of which came into existence only fifteen 
years later. And a third : — that in the absence of all evidence beyond 
that stated, the original states could not possibly be parties to any 
compact as respects matter inserted in the Ordinance by Dane between 
July 9 and July 11 (since, for one reason, there was no time to act 
upon them), though they might be parties to compacts involving the 
matter in the fourth and fifth articles, to which they had earlier given 
assent — and as a matter of fact they were and remained parties to 
compacts as respected the substance of the fifth article. 

Taking these principles and applying them to the Ordinance, it 
is clear that the eight states which adopted that instrument could not 
make provisions therein called compacts binding on the five unrepre- 
sented states as compacts; nor even on the eight states present unless 
their delegates had instructions from their own states (at least from 
their legislatures-), as agents for such a purpose. No such powers 
existed. It will be seen below that the Supreme Court of the United 
States held a century ago that none of these supposed compacts was 
a compact. 

- But see Madison on this — post n. 30. 



Compact Article I proclaimed religious liberty and the separation 
of church and state. 

Article II proclaimed various fundamental civil rights, of which 
only one was guaranteed by the federal Constitution (which was in 
process of composition simultaneously with the Ordinance), although 
with a single exception all of them are almost certainly now covered 
by the amendments of that instrument.' 1 It also contained one re- 
straint on freedom of legislative action which likewise appears in the 
Constitution. 4 

Article III declared that "schools and means of education" should 
"forever be encouraged"; and commanded, in words equally explicit 
but even less capable of enforcement, just treatment of the Indians/' 

Article IV laid down manifestly fundamental principles that 
should control the relations between the territories and the Confedera- 
tion. All these were taken from Jefferson's ordinance of 1784. They 
declared that the Territory and all states formed therein should for- 
ever remain part of the United States, "subject to the Articles of 
Confederation, and to such alterations therein as shall be constitu- 
tionally made; and to all the Acts and Ordinances of the United States 

s The guaranty of "proportionate representation ... in the legislature" 
(which of course then meant only some uniform formula of representation) 
would be covered by the Fourteenth Amendment of the federal Constitu- 
tion' (sec. 2), if not by its guaranty to every state of a "republican form of 
government" (Art. IV, sec. 4). Of all the rest — the benefits of the writ 
of habeas corpus and of trial by jury, the guaranty of "judicial proceedings 
according to the course of the common law"; the privilege of bail for all 
save capital offenses; the prohibition of excessive fines, of cruel and unusual 
punishments, of taking any man's liberty or property otherwise than by the 
judgment of his peers or the law of the land, and of taking private property 
in case of "public exigencies" without full compensation — some have been 
brought, and if our traditions remain unimpaired all save the last provision 
could doubtless be brought, under the phrases of the Fifth and Fourteenth 
Amendments to the Constitution as respect the restraint of action by the 
federal government and by the several states, respectively; and also, as 
respects action by the latter, under provisions in state constitutions similar 
to those of the above amendments of the federal Constitution. See W. A. 
Dunning, "Are the States Equal under the Constitution?" in his Essays on 
the Civil War and Reconstruction (1898), 338-41. 

* This was the clause declaring that "no law ought ever to be made or 
have force in the said territory" that should "in any manner whatsoever 
interfere with, or affect private contracts or engagements, bona fide and with- 
out fraud previously formed." This was seemingly the first appearance 
of this idea in our legal system. On its authorship see post ccclxxx-lxxxi. 

5 Our official Indian policy, on paper, has always accorded with these 
declarations, but on the actual result cf. F. S. Philbrick, The Laws of Indiana 
Territory, 1R01-1HOH (Illinois Historical Collections. 21), index s.v. "Indians." 

" clxxxi 


in Congress Assembled, conformable thereto" ; e tbat the legislature 
thereof should "never interfere with the primary disposal of the soil 
by the United States"; 7 tbat tbe inhabitants should be liable for their 
due proportion of the debts of tbe Confederation and the expenses 
of its government ; tbat no taxes should be laid on lands of the United 
States; 8 and that nonresident "proprietors," purchasers of public 
lands, should never be taxed higher than resident. An additional 
provision, not from Jefferson, declared tbat the navigable waters of 
the Territory should forever be free to its inhabitants and to all other 
citizens of the United States. 1 " 

Article V provided for creating in the Northwest Territory "not 
less than three nor more than five" states 11 with certain boundaries, 
and for their admission to tbe Confederation provided their consti- 
tutions and governments when applying for admission should be 
"republican"; which last was covered, after adoption of the Consti- 
tution, by its guaranty to all states of a republican form of govern- 

Article VI declared that there should be "neither Slavery nor in- 
voluntary Servitude in the said territory otherwise than in the punish- 
ment of crimes"; 1 - subject, however, to the right of slaveowners in the 
original states 13 to reclaim fugitive slaves escaping into the Territory. 

f! The history of these provisions from Jefferson's original draft of 
March 1, 1784 onward is given in mi. 9, 10 of Sec. IV. 

7 See on the history of this clause n. 370 of Sec. IV. 

s The mere fact of federal title could not be said necessarily to exclude 
state taxation. As a question of desirable political relations under the Con- 
stitution, however, it was ultimately held by the Supreme Court that such 
taxation was impossible — Van Brocklin v. Tennessee (1886), 117 U.S. 151; 
although this view is today weakened. All save five of the nonoriginal states 
were subjected, on admission, to the condition stated in the text — W. A. 
Dunning, Civil War and Reconstruction. 328-30; this is probably indicative 
of original doubts on the question. 

9 This protection was later assured under the privileges-and-immunities 
clause of the Constitution to all nonresidents of the taxing state who are 
citizens of another state— Ward v. Maryland (1870), 79 U.S. (12 Wall.) 418; 
although possibly not to others — W. A. Dunning, op. cit. 335-36. The re- 
striction was imposed upon twenty-two states when admitted to the Union — 
ibid. 350. 

i° William Grayson of Virginia was responsible for this provision — see 
post n. 371 of Sec. IV. 

11 Post cciv seq. and cclxx seq. 

1- Post ccxxiii seq. 

i :1 >See J. P. Dunn, Indiana: a Redemption from Slavery (1SSS), 250-51, 
on two judicial decisions of 1845, one by the Supreme Court of Ohio and one 
by a federal District Court in Indiana, which frustrated an attempt to re- 
strict the operation of the Fugitive Slave Law of 1S50 to slaves held in the 



At the end of the first part of the Ordinance — not, therefore, in 
form a compact provision, yet certainly subject to no amendment 
otherwise than by federal legislation (and, because of its nature, not 
honorably alterable even by that) — was a "saving; however to the 
French and Canadian inhabitants and other settlers of the Kaskaskies, 
Saint Vincents and the neighbouring villages who have heretofore 
professed themselves citizens of Virginia, their laws and customs now 
in force among them relative to the descent and conveyance of prop- 
erty." 14 


Discussions of the Ordinance of 1787 (aside from its legislative 
history) have been for the most part uncritical, both as regards its 
provisions in comparison with political tendencies of its time and as 
regards the actual operation of government under it. Older appraisals 
unduly emphasized the antislaverj^ clause, as is true, for example, of 
the essay of 1856 by Governor Coles. 15 His praise was virtually lim- 

original states. The argument was, that slaves in the Northwest Territory 
became free if fugitive from other than those states, because no explicit 
provision was made in the Ordinance for their reclamation, notwithstanding 
the provision in the federal Constitution. Control by Congress over entry 
of slaves into territories was not affected by the clause of the Constitution 
permitting the slave trade for 20 years — Art. I, sec. 9, sub-sec. 1. See Madi- 
son's letters of 1819 and 1820 in M. Farrand, The Records of the Federal 
Convention of 1787 (4 vol. 1937), 3: 436-39, 443. 

14 Note that their title ("property") was not guaranteed, only their 
laws or customs of conveyance and descent. See post ccxxx-xxxi, ccxxxix-xl, 
ccxlviii-ix. The vague words reflected equally vague ideas of actual conditions. 
"Canadians" perhaps included some Britishers. If not, "other settlers" did; 
likewise various Americans of various states. The "neighbouring villages" 
were those near Kaskaskia, not Vincennes. It was probably never possible to 
determine what inhabitants had "professed" Virginia citizenship, since there 
were no formal proceedings. How the land commissioners determined it cannot 
be accurately ascertained from their reports. The validity of land titles created 
by conveyances or descents not in conformity to the provisions of the Ordi- 
nance was never made dependent on such citizenship. I have noted nothing in 
the records of the land commissioners to indicate that it was ever necessary 
to consider irregular conveyances under other than French law; theoretically, 
however, other problems might have arisen both as to conveyances and 
descents. See Philbrick, Laics of Indiana Territory, (I.H.C. 21), xxiii, xxxv, 
lxviii, lxxi, lxxxi, ccxv (n. 2), ccxvii, ccxviii (n. 1); Carter, Territorial 
Pavers, 2: 49 (n. 34). 

Similarly, the Ordinance's descent provisions were not extended to 
Orleans Territory by the act of March 2, 1805 (sec. 5) — Carter, Territorial 
Papers. 9: 406. 

is Edw. Coles, History of the Ordinance of 1787 (1856). Even in dis- 
cussing "the history of its practical operation" he dealt almost exclusively 
with the antislavery clause — pp. 16-27. Even so, Mr. Dunn has pointed out 



itecl to that one compact article. With a broader interest but one still 
restricted to the compact provisions, and with uncritical hyperbole, 
George Elliott Howard wrote of the Ordinance that " it is those remark- 
able provisions concerning freedom, property*, representation, 'reli- 
gion, morality, and knowledge', that have caused the 'Magna Carta' of 
the West to be regarded as the greatest monument of statesmanship, 
modern or ancient." 16 It did, in fact, proclaim the large traditions 
of Anglo-Saxon freedom under government. It has the secure honor 
of having enunciated various principles of our national Bill of Rights 
three years before they were added to the Constitution in the. first ten 
amendments and of various other principles of our political system 
ultimately declared in later amendments. There is some basis, there- 
fore, for its laudation. The question is — how much ? 

So far a.s greatness can justly be attributed even to the Ordi- 
nance's compact provisions it is because in them it proclaimed the 
liberal ideas which are still the most cherished tenets of our politi- 
cal faith. Even so, these were dominant ideals of our Revolutionary 
era, embodied in various state constitutions. 17 The Ordinance there- 
fore deserves no unique honor in that respect. There is, indeed, some- 
thing astounding and inexplicable in the special fame that the Ordi- 
nance has enjoyed. Perhaps it is sufficiently explained by the later 
national struggle over the spread of slaveiy in the territories, which 

that his statements of judicial decisions regarding the antislavery clause 
were utterly incorrect — Indiana, 242, 243. At the end of his essay he enum- 
erated seven instances of congressional approbation of the Ordinance in ex- 
tending to other territories all or some of the rights it assured to inhabitants 
of the Northwest Territory, and, then, concluded (p. 32) by attributing to 
the Ordinance superiority over the Constitution, "if unanimity of opinion 
and repetition of legislative action can give weight"! (Italics added.) 

16 in Introduction to the Local Constitutional History of the United 
states (1889), 1: 141-42. Herbert Adams was probably responsible for the 
"Magna Carta" phrase; it was used in a book review by him of W. H. Smith's 
St. Clair Papers in 1882 — The Nation, 34: 382. 

it See especially W. C. Webster, "Comparative Study of the State Con- 
stitutions of the American Revolution," in Annals of the American Academy 
of Political & Social Science, 9: 380 seq. Of the six compact articles above 
enumerated in the text the first two were taken by the draftsman. Nathan 
Dane, from Massachusetts; all the provisions of Art. IV except the last 
(as to navigable waters — on which see ante n. 10) were taken, in substance, 
from Jefferson's ordinance of 1784, as Dane always stated — General Abridge- 
ment and Digest of American Law with Occasional Notes and Comments 
(8 vol. 1823-1824; vol. 9, 1829. with app. 1830), 9 (app.): 76; and Art. VI. 
the antislavery provision, was an adoption by Dane of a motion made by 
Rufus King in Congress in 1785. Art. V, on the formation of new states from 
the Territory, expressed, as above stated in the text, a general opinion of 
the day. 



gave to the Ordinance's prohibition a place, as Hinsdale said, "among 
the greatest precedents of our history." 18 To some extent fame has 
attached to others of its compact articles, but. undoubtedly the anti- 
slavery clause fixed the Ordinance most deeply in the consciousness of 
the country. Important, too, in the political education of citizens was 
the enumeration in its compact articles of the "natural rights" of 
individuals — although this was no more true of the Ordinance than it 
would have been of any other repetition of them except that the Ordi- 
nance was more widely read. 10 Even such a vague clause as the 
preachment on education must have exerted some influence on the 
people and on legislators. For all these reasons the ordinance un- 
doubtedly was deserving of a creditable part of the eulogies it has re- 
ceived. On the whole, but with one great exception, Justin Winsor 
gave a fair and accurate characterization of it : "The instrument was 
peculiarly the outcome of prevalent ideas. ... it was an embodiment 
of current aspirations, and had not a single new turning-point in 
human progress ; but it was full of points that had already been 
turned." 20 The exception is that his statements are true of the com- 
pact articles only. Of the Ordinance's governmental plan it is not true 
that it "was an embodiment of current aspirations"; it was utterly 
reactionary — a turning back in American political life. 

But as already said, whatever claims may be made for it to great- 
ness must be limited to the compact articles. It is some credit to the old 
Congress that though in the struggle everywhere in progress between 
innovators and conservatives 21 they showed themselves utter reaction- 
aries, in setting up over the Northwest an illiberal government calcu- 
lated to curb the anticipated excesses of its citizens, they nevertheless 

1* B. A. Hinsdale, The Old Northwest (1888), 277. 

19 "The federal constitution was not the beginning but the climax of 
American institutional development" — W. C. Webster, op. cit. at 416. "All, 
or nearly all the American colonies had at one time or another drawn up 
written instruments stating the rights of the individual as against the 
regularly constituted governmental authorities. . . . The bills of rights of 
the American Revolution are on'y a link in a long chain of institutional de- 
velopment, running back through the English Bill of Rights and Petition of 
Rights to Magna Charta. . . . These instruments of the American Revolution 
held up plainly before the view of the whole world higher ideals of individ- 
ual rights than had ever been before incarnated in law, and it is at least 
partly the result of American example that all modern constitutional coun- 
tries have come to agree approximately as to the content of individual 
liberty"— ibid. 384, 388; cf. also 411-12. 

20 The Westward Movement (1897), 285. 

21 Allan Nevins, The American States . . . 1775-1789 (1924), 420-69. 



did heed the liberal impulses of the time to the extent of guaranteeing 
to those citizens the personal liberties cherished in English political 
tradition. Nor is the honor due the South for adoption of the Ordi- 
nance including the antislavery clause — the only one of the articles in 
the Ordinance's bill of rights as to which no honor must be shared by 
it with the federal Constitution — to be wholly denied her because her 
vote on that clause was not an expression of pure idealism but diluted 
with mundane politics.-" 


It has been pointed out in the preceding section of this introduc- 
tion that the Congress of the expiring Confederation acted as though 
it were a second constitutional convention. 23 In particular, in order 
to insure on the frontier the preservation of traditional personal liber- 
ties and proper relations between the Territory and the Confederation, 

2 - The Ordinance was passed by the votes of four southern, three middle, 
and one New England state — all that were represented in Congress. See 
Journals of the Continental Congress, 1774-1789, 32: 334 n. 3, and 343. As 
respects the votes of northern delegates it was apparent that passage of the 
Ordinance was dependent upon the sale of five million acres of land to 
speculators; the New Englanders of the Ohio Company could only get their 
1,500,000 acres by forwarding the purchase of the other 3,500,000 for a 
private speculation "in which many of the principal characters in America" 
were participants — W. P. and J. P. Cutler, Life, Journals and Correspondence 
of Rev. Manasseh Culler (1888), 1: 295. Perhaps (but see post ccclxix) 
"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" — W. F. Poole, "Dr. Cutler and the Ordinance of 1787," North 
American Review, 122: at 257; compare J. P. Dunn, Indiana. 191-94. It will 
be shown below, however, that there is no evidence to support the idea that 
the Ohio Company demanded the abo'ition of slavery; and consequently no 
basis for the idea that this idealistic objective motivated consent by the 
Company's agent to the land speculation — see post ccclxix-lxxvi. As respects 
the surprisingly unanimous vote of southern delegates, by a prohibition of 
slavery they promoted two desires of their own as mundane as those of the 
northern speculators: to insure a continued southern monopoly of indigo 
and tobacco culture by excluding competition north of the Ohio, and to pro- 
mote the rapid settlement of their own slave Southwest by encouraging 
immediate settlement to the north, thus creating a bulwark against British 
or Indian aggression. See Grayson to Monroe, Aug. 8, 1787 — E. C. Burnett, 
ed., Letters of Members of the Continental Congress (1921-1936), 8: 631. 
Grayson was then Chairman of Congress — ibid. 8: 599 n. George Bancroft, 
although he printed Grayson's letter and credited the outcome to him, char- 
acterized the attitude of southern delegates as "disinterested" statesman- 
ship — History of the Formation of the Constitution of the United 8tates of 
America (1882), 2: 115, 437. It is probably true, as Mr. Poole remarked, 
"that there was then, and for the next Ave years, more antislavery sentiment 
in the South than ever existed before or since" — W. F. Poole, loc. cit.. at 253. 

2s Ante cxxiii. 



the "compact" articles were declared to be a perpetual basis for gov- 
ernment in the states to be formed in the Territory. From that view- 
point some have thought that it — and even more so Jefferson's ordi- 
nance of 1784 — might be regarded as of a "constitutional" character. 
Such an idea, in the sense that the Ordinance's provisions were ir- 
revocable, as it declared, is wholly erroneous. They were constitutional 
only in the sense that legislation by Congress, of either the old or the 
new Union, was beyond alteration by a territorial legislature. The 
Ordinance was merely legislation of a basic nature as respected politi- 
cal institutions in the Territory, regarding which Congress declared 
that it and its successors would never change their minds ; and in fact, 
as regards the principles embodied in the compact articles they never 
did. It was supposed, but in fact was only a futile attempt, "to make 
the territory a" part of the confederacy, with certain rights, before 
the new states were organized, and not a mere dependency of the con- 
federacy, without any rights of its own .... Between the confederacy 
and the territory, the ordinance was" — that is, was intended to be — 
"what the articles of confederation were between the original thirteen 
states — a bond of union, and a guaranty of the rights of the citizens 
of each within the territorial limits of the other." 21 

Two clauses in the Ordinance of 1787 seem to evidence with par- 
ticular clarity the operation of some common influence in the work of 
Congress and of the Federal Convention. Since there was certainly no 
formal or general consultation, but various men were members of 
both bodies, 2 "' this fact doubtless explains such examples of interrela- 
tion as those in question. One of these is the clause of the Ordinance 
providing for the recovery of slaves within the Territory if fugitives 
from the original states ; whereas the corresponding provision of the 
Constitution (framed two months later) provided in almost identical 
phraseology for the recovery of such fugitives from one state that 

"La Plaisance Bay Harbour Co. v. Monroe (1845), Walker's Ch. (Mich.), 
155, 164. Subject to the italicized emendations these were correct statements. 
Compare other statements in Hutchinson v. Thompson (1839), 9 Oh. 52, at 66. 

23 Wm. Pierce sat for a time in Congress, then in the Convention, then 
again in Congress — Burnett, Letters, 8: 629. Others, like Madison, were 
probably steadily in attendance at the Constitutional Convention. The Sec- 
retary of Congress, in order to make a quorum, was under the necessity of 
"even prevailing upon some members who were attending the federal con- 
vention to return to New York" — ibid. xli. This does not mean that the 
important business of the Convention was matter of public knowledge; pro- 
ceedings were very secret — E. C. Burnett, The Continental Congress (1941), 
index s.v. "Secrecy." 



took refuge in another. The other clause was that forbidding the im- 
pairment of contracts; in this the constitutional provision evidences a 
revision and simplification. 2 ' 5 Now, since the compact articles of the 
Ordinance were supposedly made virtually unalterable, and intended 
to be a perpetual basis for government in the states for whose creation 
within the Northwest the Ordinance likewise provided, both of the 
above provisions were intended to bind new states (first in the North- 
west Territory, and later in the Southwest and other territories to 
which the Ordinance was "extended") precisely as the provisions of 
the Constitution bound the old states. Hence the idea, often expressed, 
that "The Ordinance was the Constitution for the Territories as the 
Constitution was for the States; and both were parts of the same 
system, and made at the [same] time, (the ordinance a few days first.) 
and by the same men." 27 Perhaps it was so intended." But the view 
that it was permanent, or "constitutional," although given recognition 
not only by historians but even by lawyers and in some judicial opin- 
ions, 2K was wholly erroneous. For the territories Congress could only 
pass laws, basic or for-the moment as might happen, subject to repeal 
or amendment at any time. Manifestly it could not draft a constitu- 
tion for future states. The idea that it had constitutional character, 
even under the Confederation, has been shown in the preceding sec- 
tion of this introduction to be utter error. Likewise the idea that the 
Ordinance was an "engagement" of the old Union, made binding on 
the present Union by the Constitution's prior-engagements clause. 29 

- ,; These provisions in the Ordinance are in Compact Arts. VI and I, 
respectively; the corresponding provisions in the Constitution are Art. IV. 
sec. 2, sub-sec. 3 and Art. I. sec. 10, sub-sec. 1. 

-'" Thomas Hart Benton, Historical and Legal Examination of . . . the 
Dred Scott Case (1857), 37. 

28 Hinsdale, immediately after correctly characterizing the Ordinance 
as legislation ("No act of American legis'ation has called out more eloquent 
applause than the Ordinance of 17S7. ... It alone is known by the date of 
its enactment among all cur statutes"), went on to say: "It was more than 
a law or statute. It was a constitution for the Territory Northwest of the 
Ohio" — Old Northicest. 277; and in one sense (not that which he had in 
mind) it was, as explained in the text. In his preface President Hinsdale 
wrote of the Old Northwest: "It was the only part of the United States 
ever under a secondary constitution like the Ordinance of 1787." He momen- 
tarily forgot the various territories over which the Ordinance was extended. 

- fl Ante cxx-xxi, cxxiv. Those who have mistakenly believed it to be of 
"constitutional" character have frequently referred to it as a "treaty." Lay- 
men do not understand that treaties with foreign countries are not superior 
to the legislation of Congress, and can be rendered nugatory by subsequent 
legislation or lack of legislation. 



In consequence of the attitude of its framers, and for other rea- 
sons, it was natural that a practice should develop of distinguishing 
the avowedly modifiable and the supposedly permanent provisions of 
the Ordinance as respectively statutory and "constitutional." The 
practice was regrettable, for the misapprehensions underlying the 
terminology were fundamental. Their origin is to be found in then- 
prevalent doctrines of political theory. 


In order to make clear the misconception involved in regarding 
as "constitutional" any part of the Ordinance it is necessary to con- 
sider three questions : What true compacts were made in the Confed- 
eration era between the states respecting the Northwest Territory? — 
What was the true relation between those compacts and the Ordinance 
when originally enacted in 1787 ? — What was the situation of those 
compacts, and what the relation between them and the Ordinance, 
when that was re-enacted in 1789 ? Answers to all these questions 
have been given, in summary form and incidentally to the discussion 
of other matters, in the preceding section of this introduction. The 
answers call for more direct and emphatic repetition only because of 
the obscurity that long covered the subject, and the prejudices respect- 
ing it that were engendered by the slavery controversy. To begin with 
the Articles of Confederation, it is manifest that they were a true in- 
terstate compact of constitutional character."" It is equally clear that 

3" The Articles of Confederation, dated in final draft July 9, 1778, did not 
go into effect until ratified by Maryland, the last state, on March 1, 1781 — 
Jour. Cont. Cong. 19: 214. When the new Constitution was made operative 
by the ratification of nine states, this involved abrogation of the Articles 
by less than unanimous consent. It would be a short cut to excuse this by 
a plea of "necessity," always available when other reasons are lacking. But 
Madison pointed out in The Federalist that some states had approved the 
Articles by "no higher sanction than a mere legislative ratification"; that 
hence — at least as to those parties (Madison did not go into this limitation) 
— the Articles could pretend to no higher validity than a treaty, and a breach 
of such by one party absolves all others — No. 43. These distinctions, and 
the resolution — manifest from an early date in the proceedings of the Federal 
Convention — to have the new Constitution ratified by the people, are good 
evidence that the nature of true compacts must have been understood by 
many, and presumably by most, men prominent in the political life of the 
Confederation era. 

Now, a people politically organized are a state, and since the Constitu- 
tion was ratified by conventions chosen by the people within the limits of 
the several states, how can it be denied that the new Constitution was a 



from the negotiations relating to western lands, narrated in preceding 
pages, there eventuated certain true compacts between Virginia and 
4 ' the Confederation, ' ' or more correctly, since the Confederation was 
not an independent state, with the other confederated states. These 
compacts have repeatedly been emphasized. They were primarily 
these : that Virginia should cede and the Confederation accept the 
Northwest ; that Congress, acting for all the states, should establish 
government in the territory thus acquired ; and that new states of 
republican character should thus be developed and admitted to the 
Union. (In addition to these compacts, there were others of which no 
mention has been thus far necessary, and which, with one exception, 
will not be involved in the discussion of the present section. That 
exception relates to the French inhabitants of the Illinois Country, 
and will be stated later.) The acts of Congress in these negotiations 
could not be regarded as performed by it under powers given it by 
the original Articles of Confederation ; nor could the votes of the dele- 
gates of the several states upon them be regarded as within their 
powers as mere delegates in Congress. But since the agreements 
stated were conditions explicity placed by Virginia on her cession, and 
explicitly accepted by the other states through their delegates in Con- 
gress who were empowered to accept the land and give the assurances 
which the conditions demanded, undoubtedly true compacts were 
created." 1 Likewise (in view of the same antecedent negotiations of 
all the states, which related as much to North Carolina 's and Georgia 's 
claims as to Virginia's) when North Carolina and Georgia later and 
similarly ceded their land to the new federal Union ; :; - and when this 

compact? Compare remarks by Chief Justice Jay in Chisholm v. Georgia 
(1793), 2 Dall. 419, 471; J. Story, Commentaries on the Constitution (1833). 
sees. 311 n. 2, 338, 352, 371; Dane, Abridgment. 9 (app.) : 15 para. 2, 24, 25, 
32, 35, 37-41, 46, 51 n.; Downes v. Bidwell (1900),. 182 U.S. 244, 261-62. The 
Civil War proved, as a political fact, that unilateral abrogation would not 
be permitted. 

si Ante, Sec. II, at notecalls 63, 69, 100. In addition there were those (omit- 
ting those included under the compacts stated in the text) : that Virginia 
should be reimbursed for the expenses of conquering and occupying the 
Northwest since the beginning" of the Revolution; a reservation for the 
officers and soldiers engaged in these same operations; a reservation for the 
Virginia troops upon continental establishment, regarding alternative loca- 
tions; a condition relative to the French inhabitants of the Illinois Country 
which will be dealt with post ccxxx-xxxi, ccxxxix-xl, ccxlviii-ix. See proceed- 
ings of Sept. 13, 1783— Jour. Cont. Cong. 25: 556-64, and 26: 113 seq. 

•'- As regards Georgia see Carter, Territorial Papers. 5: 18, 95, 142; as 
regards North Carolina, ibid. 4: 3, 9, 13, IS. The cession by the latter state 



Union entered into agreements with the Republic of Texas incidentally 
to its incorporation into the Union. Full performance by both parties 
of the compact with Virginia made unnecessary any consideration of 
its legal nature. However, when Congress desired to divide into two 
states the territory ceded by Georgia, whereas the deed of cesssion 
had stipulated admission to the Union undivided, the division was 
properly made as subject to Georgia's consent; but, that being given, 33 
again no dispute over the binding nature of the compact arose. No 
doubt it would have been enforced (since the judicial power and origi- 
nal jurisdiction of the Supreme Court covered such a case) had neces- 
sity arisen. 34 

It was an ineluctable interpretation of the above interstate com- 
pacts respecting the Northwest Territory that in their performance 
Congress should act as the agent of the contracting parties. The dele- 
gates of the confederated states acted ordinarily under the Articles of 
Confederation, and as a legislative body. 3 "' The Ordinance of 1787 
was an enactment in the ordinary form of the delegates in Congress 
of the united states. It was totally invalid unless the delegates had 
powers, under the Articles or otherwise, to enact it. Attention has 
earlier been directed to the opinion of Chief Justice Taney that the 
delegates, though in Congress and though the Ordinance purported to 
be an act of that body, were actually not acting as members thereof 

was effected under a legislative act of 1789, by a deed of 1790, and by two 
acts of Congress of 1790. However, the lands had been ceded by an act of 
1784 subject to acceptance by Congress within a stated period, and there- 
after, within that period, the act of cession was declared repealed by the 
legislature. No court then existed in which the effectiveness of this repeal 
could be challenged. See Mr. Carter's note, ibid. 4: 3 n. 2. Had there been, 
the ostensible repeal should have been held a nullity. See Samuel C. Wil- 
liams, History of the Lost State of Franklin (rev. ed. 1933), ch. 4, 6; St. G. 
L. Sioussat, "The North Carolina Cession of 1784 in its Federal Aspects" 
(1908), Mississippi Valley Historical Association Proceedings, 2: 35, at 
50-62; Burnett, Letters. 8: 145 (Monroe to Jefferson, June 16, 1785). 

33 For cession of April 24, 1802, see Carter, Territorial Papers. 5: 142; 
for condition, see enabling bill of Nov. 18, 1812, ibid. 6: 333, sec. 5; for 
Georgia's consent of Dec. 5, 1812, see ibid. 6: 337. In a memorial of Nov. 9, 
1812 to Congress the legislature of Mississippi Territory, which had already 
urged that of Georgia to refuse consent, solemnly protested the proposed 
division. "Your Memorialists consider the People of the Mississippi Terri- 
tory Parties to that contract and as such it cannot be altered or in any wise 
modified except by their express consent. . . . They disavow any instruc- 
tions to their Representative in Congress to obtain the consent of the Legis- 
lature of Georgia to have this Territory divided" — ibid. 6: 331. 

^See Green v. Biddle (1823), 21 U.S. (8 Wheat.) 1, and text below. 

35 See ante Sec. II, n. 103. 



under the Articles but acting as agents of the several states under 
special powers. On the other hand the writer has given reasons for 
preferring the view that the Articles were impliedly amended as a 
result of the negotiations which created the three compacts stated 
above, and that the delegates were acting under the enlarged powers 
of the amended instrument. In addition to other much more im- 
portant reasons earlier urged, this second view is, of course, more con- 
sistent with the language of the Ordinance. 36 But no matter which 
view be taken, it remains evident that the Ordinance must be regarded 
as an act taken merely by way of performing the three above compacts 
that preceded and underlay it. It could not be an act consenting to 
them ; the acts of the principals required no affirmation or consent by 
the agents. The second of the three stated compacts was that which 
empowered Congress to set up a territorial government, as it did by 
the Ordinance. The third was proclaimed by it in that instrument as 
a promise to the Territory 's inhabitants ; but the compact was not 
thereby created or confirmed. 

The two sources of misconceptions on these matters seem to be 

One was a disregard of the true nature of the old Congress — dis- 
regard, because its nature, and the logical consequences thereof, were 
plain and notorious. One of the Articles of Confederation declared 
that "the stile of this confederacy shall be 'The United States of 
America,' " but another provided that "The united States in Con- 
gress assembled" should be the repository of the powers which the 
Articles then proceeded to enumerate; and "united states" was of 
course the true description, and the more desirable because not mis- 
leading."' 7 The Ordinance was entitled, as were the enactments of the 

■■<• See quotation of Taney's views, ante lxxxvii-viii, and criticisms follow- 
ing same. As respects the language of the Ordinance, in the fourth compact 
article it provides: "The said territory, and the States which may be formed 
therein, shal 1 . forever remain a part of this Confederacy of the United States 
of America, subject to the Articles of Confederation, and to such alterations 
therein as shall be constitutionally made;" — which was presumably a refer- 
ence to the expected work of the Federal Convention then in session — "and 
to all the Acts and Ordinances of the United States in Congress Assembled, 
conformable thereto" — Carter, Territorial Papers. 2: 47. 

:;7 See ante n. 1 of Sec. II. A failure in the Constitution to distinguish 
between the "United States" as a federal entity, and the "united states" when 
severally so described is decidedly a fault of style in that instrument, as 
its meaning has come to be fixed up to this time. 

The best discussion of the Constitution's terminology is that by C. C. 



old Congress in general, as ordained ' ' by the United States in Con- 
gress assembled. ' ' Even this phrase was less accurate than would have 
been the description "the confederated States united in Congress," 
for they were in fact only there and so united in the sessions of their 
respective delegates. The latter, outside the provisions of the Articles, 
were only ambasssadors, and as to such other matters not plenipoten- 
tiaries. This was true as respected matters of the western lands until 
the Articles were amended — or, under the theory of Chief Justice 
Taney, until powers were conferred on them outside the Articles. 

The history, earlier detailed, of the steps by which the Northwest 
Territory was acquired, illustrates the complete inability of the dele- 
gates to enter of their own will and ordinary authority into any inter- 
state compact. 

It may well be added that it seems incredible that they could 
possibly' have been unconscious of that inability. Reading all of the 
state papers in which are recorded the actions of Congress and of 
Virginia (and other states) one can find in them no faintest trace of 
any implied grant to the delegates of power to alter or extend the 
compacts embodied in those papers, and stated above. In particular, 
therefore, there could be no conceivable basis for the idea that each 
and every provision in the Ordinance was itself a compact between 
the original states (or between other parties). None, to be sure, was 
alleged to exist unless therein called a compact ; but merely calling 
it such could not make it one. Most of the Ordinance's provisions 
lay outside of or beyond the basic compacts which alone are revealed 
in the state papers of the time. The mere compact authorizing the 
establishment of territorial government cannot be made to cover the 
particular provisions (respecting the details of governmental organi- 
zation, suffrage, taxes, personal liberties, prohibition of slavery, etc.) 
which the Ordinance contained. Nor did the original compact for the 
development of new states involve the number of these. 

That even the old Congress realized the difference between the 

Langdell, "The Status of Our New Territories" (1899), Harvard Law Review, 
12: 365 at 365-77. Complete clarity today requires distinctions between "the 
United States" as the national entity, the "united states" as constituent 
units, "the states and organized territories" ( organized in some special 
sense), and "the national territory" including all dependencies. It may be 
added that the opinions of the Supreme Court have never been clear of an 
inconsistent use, now of the singular number, now (and usually) of the 
plural number, in references to the United States in the sense of the federal 



compacts underlying the Ordinance and the instrument itself as a 
legislative enactment of the Congress was made plain in 1788. The 
provision in one of the "compact" articles of the Ordinance respect- 
ing new states being not merely uncovered by the actual compact (as 
respected their number and boundaries) but inconsistent with its 
terms, the consent of Virginia to the unauthorized provisions was 
sought and received. 38 It was admitted, then, that what the text 
of the Ordinance solemnly proclaimed as a compact was not originally 
a compact; the case is therefore not one of altering one of its pro- 
claimed compacts '"'by common consent." 

The question then arises : Was the provision a true new com- 
pact after Virginia's approval of the provision? Not unless the dele- 
gates in Congress of all the states other than Virginia be assumed to 
have held powers to enter into such an agreement ; and all the dele- 
gates knew, of course, that in making treaties with foreign states 
formalities as to powers were punctiliously observed. 

It has frequently been suggested that provisions which concededly 
constituted true interstate compacts were subject to alteration by the 
delegates in the old Congress ; but this, in the absence of a provision 
to that effect in the compact would clearly be impossible, for reasons 
that will soon be emphasized. 39 It is manifest that these ideas are 
merely additional misunderstandings. No authority can exist for the 
proposition that Virginia could enter into a compact with other states 
by a vote of Congress taken without reference to instructions given 
the representatives of each state, and counted in the aggregate without 
reference to the vote of each state's group of representativs. 

It may also be noted that, since in this case Virginia's explicit 
consent was deemed necessary only because the Ordinance's provi- 
sion was inconsistent with the original compact, this suggests that 
mere acquiescence by the several states created true compacts when no 
actual inconsistencies were present. However, objections to this view, 
already urged, 4 " clearly require its rejection. 

If one accepts the writer's view that the Ordinance was enacted 
under amended Articles, the conclusion stands that all its provisions 

38 Carter, Territorial Papers. 2: 7, 48, 172. 

■'■'■ > Post cxcvii-viii. Jefferson proposed such a solution for articles of his 
ordinance of 1784 to which he desired to give compact form — see post n. 54 
of Sec. IV. 

±0 Ante cxxiii-v. 



were legislation ; in general merely in performance of the underlying 
compacts, and even as respects the altered provision approved by 
Virginia still mere legislation. By that action she merely waived her 
right to complain of the violation by Congress of the original (under- 
lying) compact. On any theory all the provisions of the Ordinance 
were mere legislation unless one accepts Chief Justice Taney's view 
that the sovereign States tacitly affirmed all the provisions by ac- 
quiescing therein. But that, as just said, would make all its details 
compacts — not merely those of its articles which were by it so denomi- 
nated and described; which is a fatal objection. 

The other source of misapprehensions concerning the whole sub- 
ject was an astonishing failure to distinguish between the fictional 
compact by which political theorists of that time sought to explain 
the original political organization of society, and these allegedly 
actually existing and binding compacts in a state paper, whose origins, 
gradual formulation, and authorship are matters of historical fact. 
This confusion was the basis for the idea that the six "compact" 
articles were such "between the Original States and the People and 
States in the said territory, and forever . . . unalterable, unless by 
common consent." It will be shown in this and the following section 
of this introduction that the great generality of historians are seem- 
ingly still dominated by the delusion that compacts existed. 

The question raised is one of compacts between an individual 
original state and all other members of the Confederation. The 
authors of the Ordinance were as familiar as ourselves with private 
contracts and international treaties. They knew that they had no 
special powers from their respective original states. They knew that 
they could have no authority either from the unorganized body of 
territorial inhabitants or from states that were nonexistent. They 
certainly knew that a mere unilateral declaration — particularly one 
by an outside party, themselves — could not create legal compacts of 
the nature stated. However, they were also familiar with doctrines 
of social compact and "natural" law. As a revolutionary genera- 
tion the} r had found those vague concepts useful political weapons. 
It is therefore difficult to surmise what content of fact they attributed 
to their own words. Possibly they were not intended to be taken, in 
the Ordinance, in a literal sense, but rather as a proclamation of high 
political ideals, to which in the conception of the draftsman people 



and states mutually pledged themselves. No other force or meaning- 
could be given to the Ordinance's "compacts" today by anyone ac- 
customed to think of law as enforcible by the state. What meaning 
they have had to the historians who have immoderately eulogized them 
it is impossible to say; but generally, at least until very recently, 
they have been assumed to have been binding obligations. 41 This was 
once common among bav\yers. Even judges, including justices of the 
Supreme Court, long dealt with the declaration above quoted as 
though it had a legal meaning, to be heeded in deciding governmental 
problems; and the draftsman of the Ordinance, a lawyer of repute, 
seems to have understood his words as stating entirely sound prin- 
ciples of law. 42 On the other hand Justice Curtis, in his opinion in 
the Dred Scott case, made the following sensible remarks : 

The Congress of the Confederation had no power to make such 
a compact, nor to act at all on the subject : and after what had been 
. . . said by Mr. Madison ... in the thirty-eighth number of the Fed- 

*i See post n. 67. 

42 See post n. 123. 

Nathan Dane, in his Abridgment, made a studied attempt to answer the 
declaration made in 1820 by his fellow committee member of 1786, Charles 
Pinckney, and the arguments of Senators Hayne and Benton, that the articles 
of the Ordinance were "an attempt to establish a compact, where none could 
exist, for want of proper parties" — see his Abridgment, 7: 443 seq. No one 
who desires to measure the strength of the social compact theory at that 
time (with large allowances, to be sure, for the effect of advocacy on a 
lawyer's mind and pride on an author's mind) should overlook this fantastic 
production. Aside from such evidence as that given ante n. 30 to indicate 
that a lawyer like Dane could hardly have been so naive, other reasons for 
believing that he could not have believed what he argued are given post 
n. 55 of Sec. IV. 

Governor St. Clair recognized (1795) that nonexistent states could not 
be parties — W. H. Smith, St. Glair Papers. 2: 382. A committee of Michigan 
citizens pointed out (1809) that "the future inhabitants of an uncultivated 
wilderness" could not be parties — Michigan Pioneer and Historical Society 
Collections, 12: 545; and the legislature of Orleans Territory, in 1810, recog- 
nized that the Ordinance was mere legislation — post n. 71. However, St. 
Clair had also agreed in 1788 with Judges Parsons and Varnum that the 
Ordinance's provision on decedents' estates (Carter, Territorial Papers. 2: 
39) "must be considered 'as a compact between the United States and all 
the settlers', and can not be altered by a declaratory act" — ibid. 3: 277. 
Secretary Gallatin (1802) thought the boundary provisions "could not until 
the admission of the State [Ohio] in the Union ... be alter'd without the 
consent of the people of the territory, of Congress & of Virginia" — Library 
of Congress: Jefferson Papers, under April 30, 1S02. Above all, Joseph 
Story assumed the validity of the compacts, their obligation attaching to 
parties (seemingly states) nonexistent in 1787, "when they were brought 
into life" — Commentaries on the Constitution (1833), sec. 326 n. 1: and see 
sec. 1328. It was Dane's argument that there was "a system of [land] 



eralist, 43 I cannot suppose that lie, or any others who voted for this 
bill (namely that of 1789 that re-enacted the Ordinance of 1787) 
attributed any intrinsic effect to what was denominated in the ordi- 
nance a compact between "the original States and the people and 
States in the new territory ' ' ; there being no new States then in exis- 
tence . . . with whom a compact could be made, and the few scattered 
inhabitants, unorganized into a political body, not being capable of 
becoming a party to a treaty, even if the Congress of the Confedera- 
tion had had power to make one touching the government of that 
territory. 44 

It may be added that the Ordinance of 1787 had no legal exis- 
tence under the new Union except through its re-enactment in 1789 
by the new Congress, and that that body, under the powers granted 
to it in the Constitution, had no authority whatsoever to make any 
compacts binding upon any of the parties mentioned (or even binding 
upon itself in relation to them) — or to represent the states, who alone 
of the parties mentioned could enter into compacts, in making such. 

These supposed compacts were also declared to be "forever un- 
alterable." 45 Assume that the delegates in Congress had been em- 

sales and government binding on all [individuals] who agree to buy and settle 
under it . . . and who become parties to the system, as they buy and settle 
under it" — Abridgment. 7: 443. Buyers voluntarily subjected themselves to 
a contract, nothing more. Settlers were subject, willy-nilly, to local govern- 
ment. Dane's imaginary "system" was conceived as a basis for imaginary 

Some judicial comments on the supposed compacts have been given, 
ante in n. 101 and at notecalls 174, 186 of Sec. II. 

Justice McLean said, on circuit in 1838: "This compact was formed 
between political communities and the future inhabitants of a rising terri- 
tory, and the states which should be formed within it. And all who became 
inhabitants of the territory made themselves parties to the compact. And 
this compact so formed could only be rescinded, by the common consent of 
those who were parties to it" — Spooner v. McConnell (1838), 1 McLean 337, 
344. Less irrational was a suggestion of the Supreme Court of Ohio: "There 
was in reality but one party to it originally, and that was the general govern- 
ment. But when application for admission into the union was made by the 
people . . . [of Ohio], modifications in several parts of the Ordinance were 
asked for, and they were granted by the United States as one party, to the 
state, as the other. This seems to show that the people of Ohio have, so 
far, treated the articles of compact as of perpetual obligation. The altera- 
tions proposed . . . were of no importance, if the state should have a right 
to annul the ordinance the moment it assumed that condition. The state 
may thus, by its own act, have converted that into a compact which was 
before only a fundamental act of Congress" — Hutchinson v. Thompson (1839), 
9 Ohio 52, 62. 

4;: See ante lxxxiv-v. 

"60 U.S. at 617. 

45 By an enabling act of 1854 for Colorado. Congress had ostensibly com- 
mitted itself to admit that Territory as a state, whether organized as a free 



powered to create them, as respected the original states ; even so, it 
is manifest that in that case, for lack of a court to enforce them, until 
after 1789 they could have had only the uncertain permanence of any 
treaty between sovereign states. The fate of the Articles of Con- 
federation exemplifies such impermanence. It is also evident that 
while the Confederation endured, alteration of these compacts — which 
necessarily could not be unilaterally effected — required action, liter- 
ally, by the several confederated states. A mere vote by the united 
states as in Congress assembled could not possibly satisfy that re- 
quirement ; for some of the states might not at the time be represented ; 
or some states, though represented, might have no vote because of 
their delegates being divided in opinion ; or some states might be 
present and vote, but against the proposed alteration. 

The situation became very different under the present Constitu- 
tion. Sovereignty was now divided, and the powers of government 
were distributed to a much greater extent than under the Articles. 
Within the spheres of action assigned exclusively to the federal gov- 
ernment. Congress became, although not technically the repository, at 
least in fact and over a vast field of action the wielder of sovereignty. 
One of those spheres was the government of territories and admission 
of new states. As to those matters the states retained no powers 
whatever. Consequently, it would seem that action by Congress after 
1789 in alteration of a compact supposedly made within that field by 
the Confederation (and if made, then necessarily confirmed by the 
Constitution as an obligation incumbent on the new Union), must be 
recognized as representing action by "the original states" as original 
parties to the compact. Was it necessary to procure consent to such 
alteration from the other party to the compact, Virginia? That it 
was not necessary seems clear. But if one assumes the necessity, how 
could her consent be effectively given? We shall see that in certain 
actual cases her legislature purportedly gave consent; but it is dif- 
ficult to see how action by a merelv legislative bodv, when Virginia 

or a slave state — that is, had "committed itself if it had the power to do so." 
It was "a complete delegation of the power, which the very passage of the 
act itself implied to have resided in Congress before that time, to the people 
of the Territory"; namely, the privilege of fixing their domestic institutions. 
Admission was not asked for until 1866. In the meantime another enabling 
act of 1864 had ignored that of 1854. The quotations are from remarks by 
Senator Edmunds of Vermont, Congressional Globe. 39 Cong. 2 Sess., at 199 
(col. 3), 215 (col. 1). 



no longer had any legislative powers, could constitute action by her 
as a sovereign state or be, therefore, legally binding. Politically, as 
a matter of honor, and for the purpose of satisfying the other original 
states, such action might be sufficient; and since it was in fact accep- 
table to them no issue as to its efficacy ever arose. 

In what has been said, true compacts have been postulated. But 
the situation was wholly different as regarded all the supposed com- 
pacts in the Ordinance of 1787. The parties to these "compacts" 
as therein named were: the people of the Territory (or territories 
into which it was divided — or other territories than the Northwest 
Territory to which the Ordinance was in whole or part extended), 
the future states formed therefrom, and the thirteen original states. 
But none of these "compacts" was in truth a compact unless it 
merely reproduced one of the actual compacts that underlay the 
Ordinance. They were otherwise merely legislation by Congress — 
both in 1787 as within its powers by implied amendment of the Articles 
of Confederation and in 1789 under the exclusive powers vested in 
Congress by the Constitution. The ideas that any subsequent action 
by Congress (or by other parties) could constitute violation of one 
of these so-called compacts as a true compact, and that it might be 
necessary to secure consent to the action of Congress from some or all 
the enumerated compact parties, were mere delusions. 

At the most, too, the right of a state to enforce such compacts 
against another could have endured only while the parties to them 
retained sovereignty as respected the matters therein involved. But 
they lost sovereignty, for example, over territorial government and 
the admission of new states. Hence, so far as Congress would have 
been held to hold discretionary power over those fields, no posited 
compact could have been enforced contrary to that discretion as re- 
spected personal liberty, religion, education, slavery, or the admission 
of states on attainment of a population of sixty thousand free in- 
habitants under Compact Articles I, II, III, VI, and V. A court 
could only have ascertained the nature of those provisions and the 
nature of the power granted to Congress over the matters with which 
they dealt. That is all, too, that could have been ascertained respect- 
ing the boundary provisions of new states set out in Article V. And 
as respects Article IV, we know, looking backward, that no action by 
any state could have amounted to more than a prayer that the Con- 



stitution be enforced, for it covered all of that article's provisions. 
It merely happened — not indeed fortuitously, but for good reasons 
already adverted to — that the Ordinance's provisions were not in- 
consistent with those of the new Constitution, except that some went 
far beyond the latter apart from its subsequent amendments. Until 
after the adoption of these, interstate compacts in the Ordinance, as to 
matters over which the states retained sovereignt^v, could temporarily 
have been enforced as such by action between states. 

In short, there was not much in the Ordinance's "compacts," 
even assuming them to have been such, of a "forever unalterable" 
character. They ceased, virtually, to have meaning after the Consti- 
tution and its Bill of Rights had been adopted. But it is a pity that 
no state, by action on an alleged compact, did not earlier cause the 
Supreme Court to clear up problems of the nature of the Ordinance 
and of its relations to the Constitution. 

The actual nature, actual treatment by- Congress and other 
branches of the government, and actual effects of these supposed com- 
pacts of the Ordinance constitute the topics (for they long since 
ceased to be questions or problems) to which the rest of the present 
section will be devoted. 

The general legal situation under the Constitution was very dif- 
ferent from that under the Confederation. Since the two Unions 
were totally distinct, and no obligations of one passed by mere suc- 
cession to the other, affirmation by the new Union to the basic com- 
pacts underlying the Ordinance was a necessity to their continued 
existence. 46 There were no continuing unperformed duties on the 
part of Virginia or other states that required recognition by them; 47 
they had ceded their land claims, and the Union had taken them over. 
But it was absolutely necessary that there be an assumption by the 
new Union of its correspondent obligations. This was done by insert- 
ing in the Constitution the provision that "all . . . engagements en- 
tered into before the adoption of this Constitution, shall be as valid 
against the United States under this Constitution, as under the Con- 

*e All those enumerated ante in text preceding notecall 31 and in that note. 

*.f None on the part of Virginia. As respects North Carolina and Georgia, 
the Confederation only had assumed an obligation — ante n. 166 of Sec. II. 
North Carolina was bound the instant she voted cession — ante n. 32. 



federation." No further action was ever taken, or needed. Vested 
rights in property were of course protected then as now ; 48 the inser- 
tion in the Constitution of the impairment-of-contracts clause illus- 
trated that attitude. The compacts now in question created property 
rights in the Union. Their importance, too, was beyond exaggeration. 
They had been the indispensable means of establishing the Confedera- 
tion, and the land cessions which were the consideration for the obli- 
gations assumed by the Confederation were considered essential for 
payment of its debts and for successful maintenance of continental 

The compacts actually made between Virginia and the Confedera- 
tion were, then, confirmed by the Constitution. The re-enactment of 
the Ordinance in 1789, and all later legislation respecting the North- 
west Territory, presupposed the continuing validity of the compacts. 
Even in judicial opinions, when discussing the status and effects of 
the Ordinance under the new Union, it has been common practice to 
refer to it as the Ordinance "of 1787." Obviously, however, it was 
only as the re-enactment of 1789 that its constitutionality and effects 
could come before the federal courts, or be otherwise considered. 
Confusion has entered into the matter of its re-enactment, with refer- 
ence to the effects of that action by the Congress of the new Union. 40 
Manifestly, it could have no effect beyond the powers of Congress 
under the Constitution. Manifestly, that body, even more clearly than 
its predecessor, could create no compacts between anj* states, for it 
had no powers on the subject ; 50 nor could its acts have even the sem- 

48Terrett v. Taylor (1815), 13 U.S. (9 Cranch) 43; and re compacts 
today between a state and the United States respecting property held by 
either party see W. W. Willoughby, The Constitutional Law of the United 
States (2d ed. 3 vol. 1929), sec. 174. 

40 See ante cxix seq. 

bo Similar compacts later made with North Carolina and Georgia, in- 
cidentally to receiving cessions from them, fall under the power to acquire 
territory, as matters essential to the exercise of that power. 

The Constitution empowers Congress to authorize agreements between 
the several states — Art. I, sec. 10, sub-sec. 3; but with this the Ordinance did 
not have, nor purport to have, anything to do. Moreover, although that 
constitutional clause does not read "subsequent agreement or compact," that 
would seem to be its necessary reading, since the instrument was one pro- 
viding for the future. The agreements underlying the Ordinance had been 
made in 1784 and were confirmed, as "engagements entered into, before the 
adoption of this Constitution" by Art. VI, sec. 1. 

But quite aside from these provisions, the Ordinance was not, itself, a 
compact, and it contained no compacts. It merely presupposed certain com- 
pacts. The existence and content of these — and the nonexistence of the 



blance of such an effect, since it was not (as the old Congress had 
been) a participant in negotiations between sovereign states with 
whose actions its own could be confounded. 51 In 1789, even more 
plainly than in 1787, the Ordinance was necessarily mere legislation. 
This conclusion is supported by decisions of the Supreme Court 
through a full hundred years. When questions of its legal nature 
and effect were ultimately presented to the Supreme Court, its so- 
called compacts, "forever unalterable unless by common consent," 
were held to be no more than solemn pronouncements of prospective 
national policy, necessarily limited by the powers of Congress as a 
merely legislative body, and hence with the characteristics of ordinary 
legislation. As such, it could have no permanence beyond that which it 
might enjoy by grace of abstention by Congress from thereafter re- 
voking or modifying it. 52 Aside from the very rare cases in which 

others — are proved by the state papers of Virginia and the proceedings of 

si Professor R. W. Effland, in a very useful note on the navigable- 
waters clause of the Ordinance, submits the questions (1) whether re-enact- 
ment of the Ordinance in 1789 could be held to "constitute Congressional con- 
sent to a compact between States" (under Art. I, sec. 10, sub-sec. 3 of the 
Constitution), taking the Ordinance as "a contract or treaty between the 
original states and the people of the Northwest Territory, and, therefore, 
states formed out of that territory"; and (2). "why has the Ordinance never 
been treated as a compact within this article?" — Wisconsin Law Review 
(1939), at 549 n. 16. The answers to these questions, as the writer sees 
the matter, are given in the preceding note. 

52 Taking it as legislation, and remembering that its wording was not 
altered when re-enacted in 1789, what could "unalterable, unless by com- 
mon consent" actually mean? It could only mean, in the days of the Con- 
federation, unalterable save by "the united states in Congress assembled" — 
that is by the Congress; the quoted words being merely those by which that 
body was described in the Articles of Confederation in conferring powers 
upon it, and employed in all its enactments, and therefore not to be under- 
stood as indicating that the Ordinance had any unusual character. I infer 
that Mr. Burnett would read "consent of the United States in Congress 
assembled" as "consent of the united states as assembled at any time in Con- 
gress," assuming the required quorum; not as the equivalent of "consent 
of the united states" — Burnett, Letters, 8: 194 n. 7. I would so read the first 
phrase myself. 

But this does not affect the fact that the "Original States'* (not "in 
Congress assembled") were named in the Ordinance as parties to the sup- 
posed compact. Their individual consent was therefore essential if there 
had actually been any compacts. The practice followed was consistent only 
with the view that there were no compacts. 

Jefferson's ordinance of 1784 contained a provision that the inhabitants 
of the Northwest Territory should be subject "to the government of the 
United States in Congress assembled." This was struck out, and replaced 
by a provision that they should be subject "to the Articles of Confederation" 
—April 20, 1784, Jour. Cont. Cong. 26: 248-49. 



action of Congress is taken once for all time, 53 the words "forever" 
and "unalterable" can only mean "until hereafter modified or re- 
pealed." And as Justice Curtis said in his Dred Scott opinion: 

Of the political reasons which may have induced the Congress 
[of 17871 to use these words, and which caused them to expect that 
subsequent legislatures would conform their action to the then gen- 
eral opinion of the country that it [the antislavery clause of the Ordi- 
nance] ought to be permanent, this court can take no cognizance. 54 

As a matter of fact, President Monroe's cabinet in 1820 formally con- 
sidered the question whether the word "forever" in the Missouri 
Compromise of that year could bind any state created from a territory 
subject to that restriction, and all save John Quincy Adams, includ- 
ing John C. Calhoun, gave written opinions to the contrary. 55 

It was plain at the time of the Constitution's completion that 
one of the Ordinance's "compacts" was common to the two instru- 
ments; and others were later held by the Supreme Court to be cov- 
ered by clauses of the Constitution. 50 Beyond this the Ordinance had 
no constitutional "character" except in the sense that, as a statute, 
it conformed to the Constitution, including the grant of power to Con- 
gress to control the territories by legislation — freely modifiable. Only 
to this extent did the Ordinance's "compacts" have any permanence 
beyond the power of Congress to nullify the rights they recited. But, 
since Congress in repeating in a statute the words of the Constitution 
does not create those rights, it could, of course, have removed such 
repetitions from its statute. 

At the present time, it might seem superfluous to cite authority, 

r >3 As in the admission of a new state. Even then the action is subject 
to judicial inquiry as to whether state action conformed to the congressional 
enabling act and whether the result accords with the Constitution. Thus, 
if Congress, as a condition put upon the admission of a state to the Union, 
requires its constitution to contain certain provisions, and later approves the 
constitution and admits the state, it is still for the Supreme Court to say 
whether the state constitution is repugnant to that of the United States — 
Gunn v. Barry (1872), 82 U.S. (15 Wall.) 610. 

s* 60 U.S. at 628; where he in fact gives authority, though just stated to 
be unnecessary, on the point preceding this quotation. 

ss The questions put to the cabinet are stated, and a summary of dis- 
cussion by its members given, in the diary of John Quincy Adams under 
dates of March 3-6, 1820 — Memoirs, 5: 4-15; likewise in his Writings (Ford 
ed.), where the written answers of Adams, Crawford, Calhoun, Wirt, and 
Thompson are also to be found — 7: 1-2. Senator Benton called attention to 
this in his Dred Scott Case, 99-100. 

•"'6 Ante at notecalls 3 and 4. 



even to laymen, for legal propositions seemingly so elementary as 
those above stated. Unfortunately, however, popular assumption long 
ran counter to them. One reason for this was, presumably, the per- 
clurance of theories of natural rights and social compact. Another, 
doubtless, was that the Ordinance's antislavery clause became a theme 
of political orator}' before the Supreme Court spoke on the subject. 
In consequence, popular assumption was supported by the dicta of 
statesmen, by some practices of Congress, and even by some judicial 
decisions. All this is particularly true of the compact articles. 

Subject to a very slight hesitancy one may say that it was true of 
those articles alone. The hesitancy is due to the fact that with refer- 
ence to matters indubitably within the discretion of Congress that body 
sometimes acted as though it were constrained by the Ordinance. 

An illustration may be given in the matter of territorial and state 
boundaries. The power of Congress to establish and alter at will the 
boundaries of territories was unquestionable, and was from the begin- 
ning freely exercised in the Northwest Territory and elsewhere. 37 Yet 
in an act of 1805 relating to the Territory of Orleans, Congress "re- 
served" a power to alter its boundaries prior to admission as a state. 5 " 
The Ordinance of 1787 had been extended to that Territory ; perhaps 
it was realized that there existed misunderstanding as to which parts 
of that instrument were unalterable, so that political expediency made 
it desirable to "reserve" the power explicitly. 

The situation in respect to state boundaries was very different, 

" The "territory" or "province" of Louisiana acquired by cession from 
France (created Oct. 31, 1803 — U. S. Stat, at Large. 2: 245; and compare 
law of March 19, 1804 — ibid. 2: 272) was divided by the act of March 28, 
1804, which created the Territory of Orleans and the District of Louisiana — 
ibid. 2: 283, sees. 1, 12. The same power was exercised in twice dividing 
Indiana Territory, in creating Michigan Territory in 1805 and Illinois Terri- 
tory in 1809 — ibid. 2: 309 sec. 1, 514 sec. 1; in dividing the Territory of 
Orleans, adding a portion to Mississippi Territory in 1812 — ibid. 2: 734; in 
dividing Illinois Territory and adding part to Michigan Territory in 1818 — 
ibid. 3: 428 sec. 7; etc. 

ss March 2, 1805 — U. S. Stat, at Large. 2: 322 sec. 7; Carter, Territorial 
Papers, 3: 405. And note, next page, what it did in 1836 in altering the bound- 
ary of Michigan Territory and the state of Ohio. A caluse declaring reten- 
tion of this power was included in the organic acts of the following terri- 
tories (in all save that of Arizona as a power to divide or change the boun- 
daries and to add any portion to any other territory or state): Wisconsin. 
Oregon, Minnesota, Utah, New Mexico, Nebraska and Kansas, Nevada, Dakota, 
Arizona, Idaho, Montana, Wyoming, and Oklahoma. But it was not inserted 
in the Washington statute — although parts of Utah and Washington terri- 
tories were added to Nebraska. The clause was meaningless. 



and somewhat difficult. In advance of any land cessions to the Con- 
federation the Congress had in 1780 engaged, were such cessions made 
(as it urged), to create in any territory ceded new states, which 
should ultimately be admitted to the Union as equals of the original 
states. Its resolutions unquestionably constitute one of our greatest 
state papers as a matter of national policy, yet there was included in 
them an astoundingry fatuous provision making these prospective 
states squares, and fixing a small maximum area for each/' 9 Land 
cessions were made in reliance upon these stipulations, and even re- 
peating them as a condition of the cession, so that true compacts 
resulted (assuming in Congress a power to act which in fact the cir- 
cumstances conferred). When more was learned of the Northwest's 
geography, and political problems pondered, it became obviously neces- 
sary to alter these compacts. Congress asked Virginia's consent to 
the creation of not less than three nor more than five states — neces- 
sarily larger than those originally stipulated ; but, no action being 
taken by her, passed the Ordinance of 1787 with that provision, the 
boundaries to be as it stated "as soon as Virginia [should] alter her 
act of Cession and consent to the same," which she eventually did.' 50 
However, upon this supposed substitution of a new for the original 
compact no states formally acted; there was merely the vote by the 
uninstructed delegates of the eight states that passed the Ordinance, 
and a later consent by the legislature of Virginia. The last might 
reasonably be regarded as sufficient, the former could not possibly be 
so regarded, as earlier explained. 

Now, the discretion given Congress by the Ordinance was to create 
two additional states "north of an east and west line drawn through 
the southerly bend or extreme of Lake Michigan. ' ' If only three states 
were created their northern boundary was the international line with 
Canada. If five were created the northern boundaries of the southern 
tier were not explicity stated, but it was inf erentially plain that it was 
to be the east-west line through Lake Michigan's southernmost point. 
Moreover, the east and west sides of the three southern states were ex- 
plicitly stated, but none otherwise indicated for the two northern states 
should such be created. It is again inferentially plain, however, that 

•"•9 Oct. 10, 1780— Jour. Cont. Cong. 18: 915. 

so The Ordinance — Carter, Territorial Papers, 2: 48; request by Congress 
on July 7, 1786 — Jour. Cont. Cong. 30: 390-94; Virginia's consent, Dec. 30, 
1788— Carter, op. cil. 2: 172. 



their east and west sides were to be the portions of those sides, as 
described for the southerly states, which were north of the east-west 
line through the .southern extreme of Lake Michigan. One conse- 
quence of this last inference is that what is now Michigan's Upper 
Peninsula would have been within Wisconsin. But note that, strictly 
speaking, there were no compacts in the Ordinance regarding bounda- 
ries; like all the rest of its detailed content, there was nothing of that 
nature unless calling a thing by one name or another alters its nature. 
Actually, Congress ignored both of the two lines mentioned. In 
consecpience of this, Ohio, Indiana, and Illinois all profited at the ex- 
pense of their northern neighbors, and Michigan at the expense of 
Wisconsin. Confusion was not confined to the Ordinance. It was ag- 
gravated by the inconsistency of Congress in sometimes assuming the 
compact character of that instrument's boundary lines, and sometimes 
assuming the contrary. The enabling act for Indiana required the 
people "interested" in the boundary changes it involved to ratify 
them, and the same requirement, in substance, was imposed on Illinois. 
When Ohio's northern line was corrected in 1836 to include a claim 
made in her constitution, under which she had been admitted in 1802, 
Congress offered Michigan in exchange for this trifling loss in the 
south her present Upper Peninsula ; — taking this out of what was then 
Wisconsin Territory, but with the result of ignoring an Ordinance line 
for the state of Wisconsin when that should be admitted. And the 
people of Michigan, as the price of admission to the Union, were re- 
quired to ratify this exchange — which, after talk of arms, they sullenly 
did; but Wisconsin's consent was never asked in that case or with 
respect to the northern boundary of Illinois." 1 Intense resentment was 

"i See R. King, Ohio (1888), 356-61; T. M. Cooley, Michigan (rev. ed. 
1906), 214-25; R. G. Thwaites, Wisconsin (1908), 232-40 and "The Boundaries 
of Wisconsin" (1888), State Historical Society of Wisconsin Collections. 
11: 451-501; Mrs. F. J. Sheehan, "The Northern Boundary of Indiana" (1928), 
Indiana Historical Society Publications, 8: 289-321; A. M. Soule, "The Michi- 
gan-Indiana Boundary" and "The Southern and Western Boundaries of 
Michigan" (1897), Mich. Pioneer and Hist. Soc. Collections, 27: 341-45, 346-90. 
Both Mr. Thwaites and Judge Cooley (see post n. 67) wrote as though they 
believed in compacts — Mr. Thwaites decidedly so throughout his paper. A 
quotation by Judge Cooley {op. cit. 219) from John Quincy Adams indicates 
that he must have shared such views. 

See also the acts of March 2, 1827, U. 8. Stat, at Large. 3: 236; of March 
2, 1831, ibid. 3: 479; and of June 23, 1836, ibid. 5: 56. These acts would all 
have been violations of the compacts of the Ordinance if its provisions had 
been compacts. No violation of Virginia's original compacts with the Con- 
federation was involved; her stipulation regarding the size of new states 



aroused by Congress' disregard of the Ordinance lines. There was 
talk of secession in Wisconsin ; a governor of that state issued a procla- 
mation to Illinois inhabitants "within the ancient limits of Wisconsin" 
to vote on joining that state ; Ohio passed an election act for citizens 
certainly then residents of Michigan ; Michigan passed a statute mak- 
ing highly penal any exercise of office under the Ohio law ; both Ohio 
and Michigan called out their militia. Important economic interests 
were involved, too, though the Upper Peninsula then was mere wilder- 
ness, and Toledo and Chicago meant virtually nothing. Looking back, 
one can see only politics and the fervor of Jacksonian democracy. 

The basis, however, of all the trouble was the fog surrounding the 
Ordinance's compacts. The truth is that its. boundary provisions, 
along with the population requirement for new states, had received 
much attention, before and during the framing of the Ordinance. 
None of its other "compacts" was — none could be — so definitely 
stated. How could true compact character be denied to these and at- 
tributed to other alleged compacts? It seems remarkable that, once 
these "exceptions" were made to the supposedly super-statutory in- 
violability of the Ordinance's "compacts," anybody (and particularly 
distinguished judges) could have spoken as though any of its provi- 
sions were actually of that character. The Illinois case was in fact a 
departure from the Ordinance that had vast importance. It extended 
that state northward sixty-one miles beyond the "Ordinance line," 
thus giving it the site of Chicago and an adecpiate lake front, with 
the avowed purpose of tying its loyalty to the North rather than to the 

being broken, she waived violation of that when the Ordinance as passed 
was submitted to her for that purpose {ante n. 38), but could not by so 
doing give any special character to other details of the instrument, such 
as boundaries, beyond that given them by the votes in Congress of her repre- 
sentatives and those of other states. The acts affecting Michigan's boun- 
daries with Indiana and Illinois are in V. 8. Stat, at Large, 3: 289, 428. 

Had there been involved no seeming violation of a provision of the Ordi- 
nance, of course Congress would have been free to fix the boundaries assigned 
to any of the states mentioned upon their admission to the Union. If im- 
posed as "conditions" upon the state admitted (this was the case as re- 
spects the Illinois boundary), such conditions would be perfectly valid, since 
obviously they could not affect the sovereignty of a state after admission. 

In 1801 the legislature of the Northwest Territory gave its "consent" 
to a change of boundary which would have created a state out of the western 
part of Ohio and the eastern part of Indiana as those states exist today — see 
Carter, Territorial Papers. 3: 220 n. 18. This was merely proffered "consent," 
based on reasons of territoi ial politics, and was not accepted by Congress, 
which created Ohio with boundaries as defined in the Ordinance. 



Mississippi and the South, an objective manifestly important in 1818 
and fully realized (though perhaps primarily for other reasons) be- 
fore the Civil War. 

As respected provisions in the compact articles involving vital 
political interests, their constitutional character was generally and 
unquestioningly assumed. Jefferson, when he drafted his ordinance 
in 1784, assumed, as will later be noted, that it would establish forever 
a basis for territorial organization ; he proposed that at least a portion 
of it should be put in the form of true compacts. 02 The same assump- 
tion underlay the Ordinance of 1787 ; but there is no evidence that 
any of its framers intended to go further than to call its provisions 
compacts. 03 Its draftsman, Nathan Dane, maintained that no provi- 
sion in the constitution of a state formed within the Northwest Terri- 
tory could have validity if inconsistent with the Ordinance's "com- 
pacts." 64 Webster, too, in the debate with Hayne, declared that those 
"compacts" were "not only deeper than all local law, but deeper, 
also, than all local constitutions." 05 That was good oratory, and 
possibly good politics, but certainly (like some other parts of Webster's 
great speech) poor history. As for Dane, he was defending the Ordi- 
nance as his own, against recent attacks on his claims of authorship, 
and good reasons will later appear for strongly doubting his intel- 
lectual honesty in that performance. 00 

Theories of social compact colored the political thinking in 1787 
of persons whose educational background would be comparable to that 
of those who read these pages. Today, a totally different intellectual 
atmosphere permits the acceptance of these hoary fallacies only by 
the educated who have read the words of social philosophers without 
sufficiently reflecting upon their errors. Historians offer many ex- 
amples of this truth. 07 Even by 1830 progress away from them had 

|; - Post n. 53 of Sec. IV. 

83 Dane put in the compacts at the last moment; there is no evidence 
that the problem was considered by him or by the committee; and the 
facts in n. 123 post suggest an increasing willingness to assume that com- 
pacts could be so created. 

s* Abridgment, 7: 443. 

"5 Webster, Works. 3: 264; Writings and Speeches. 5: 264. On John 
Quincy Adams compare ante nn. 55, 61. 

06 See ante n. 42. 

117 So, for example, Mr. Poole wrote in 1876 : "its broad and enlightened 
provisions . . . were made perpetual and irrepealable . . . when new states 
were organized on this territory, the people were not left with the discre- 
tion of accepting or rejecting the provisions of their ordinance in their con- 



been very great. In answer to this it may be said : Compact or no 
compact, there was a right to rely upon the word of Congress. Not, of 
course, in law; to assume so would contradict the Constitution's decla- 
ration that Congress shall have power (that means, at all times) "to 
make all needful rules and regulations" respecting the territories. 
The boundary disputes just mentioned did not really involve reliance 
by the citizens on anything. The citizens took no interest in them. 
They merely afford views of rampant politicians before a backdrop of 
the public's common sense. 

The idea that the Ordinance's compacts were immutable and 
national in character was scarcely challenged before the great debate 

stitutions" — ante n. 22, at 231. Herbert B. Adams wrote that Jefferson's 
idea "of a federal compact between the East and the West . . . was adopted 
by Congress April 23, 1784, and readopted July 13, 1787, in the so-called 
'articles of compact', which . . . were 'to endure forever' " — in The Nation 
(May 4, 1882), 34: 384 col. 2. Mr. Thwaites rested the "birthrights" of 
Wisconsin and Michigan on the Ordinance's supposed compacts — ante n. 61. 
Francis A. Walker assumed they were realities — The Making of the Nation, 
1783-1817 (London, 1896), 39; Frederick D. Stone, in his in general highly 
critical article on "The Ordinance of 1787" (1889) did the same — Pennsyl- 
vania Magazine of History and Biography, 13: 309, at 314. Mr. Nevins 
accepted the Ordinance's words, stating that it "was 'a compact between the 
original States, and the people and States in the said territory' " — Allan 
Nevins, The American States, 597. Justin Winsor wrote of Jefferson's ordi- 
nance, "All provisions were in the nature of a compact between the new 
communities and the old" — Westward Movement, 260; and in pointing out 
the disregard by Congress of the supposed compact relating to boundaries, 
in the Ordinance of 1787, and the consequent "futility" of these, he evidently 
assumed them to be in fact compacts — ibid. 286. Even Professor G. E. 
Howard wrote: "The guaranties of the compact — which were to remain un- 
alterable, unless by common consent — 'fixed forever the character of the 
population, in the vast regions northwest of the Ohio', and, let us add, the 
still broader domain west of the Mississippi" — Introduction to the Local 
Constitutional History of the United States (1889), at 142. Professor 
Howard's quotation (continuing, "by excluding from them involuntary 
servitude") is from Webster, Works. 3: 264. The latter's statement is sound; 
for the Ordinance was allowed by Congress to control the territories while 
such, and their population actually adopted for the new states constitutions 
that continued in essentials the Ordinance's prescripts. But Howard's 
"domain west of the Mississippi" is less accurate, however great may have 
been the influence of that instrument on the other statutes, beginning with 
the Missouri Compromise, which share responsibility for trans-Mississippi 
developments. References to these matters in general histories are so brief 
that it is usually impossible to know what the writer's position is. For 
example, John D. Hicks, after quoting the compact provision on personal 
rights, enumerates some of the rights "thus solemnly guaranteed" — The 
Federal Union (1937), 182. But in what sense was there any guaranty? 
That is a word rarely adequately scrutinized here. 

Nor have the few lawyers who have written of these matters been ade- 
quately careful. James Schouler wrote of the Ordinance as "ordaining 
religious freedom perpetually," and stated that it "dedicated the soil to free- 



of 1820 on the Missouri Compromise, and the practice of treating the 
ostensible "compacts" as though they were actually such continued 
long after that debate. In the meantime Congress extended the Ordi- 
nance of 1787, in one or another sense, to new territories. In early 
days, before the defects of its governmental plan became apparent, it 
was natural to establish a government identical with or similar to that 
established in the Northwest Territory, except when, as in the case of 
Orleans Territory, the peculiarities of pre-existing laws and govern- 
ment made this undesirable. 08 When such extensions of the Ordinance 
were made, the supposedly peculiar character of its compact articles 
was specially recognized in provisions assuring to the inhabitants the 
"rights, privileges, and advantages" granted in 1787; and sometimes 
there were words of perpetuity. The practice of granting these rights 
to the inhabitants of the territories, by act merely of Congress yet 
seemingly as rights assumed to be of super-statutory character, 09 con- 

dom forever" — History of the United States (rev. ed. 1894), 1: 111-12; look- 
ing, again, merely at the words anyone can read. As respects Compact 
Article V, although the erroneous idea that the Ordinance, itself and directly, 
controlled the admission of states disappeared in the main long ago, it can 
be found even in relatively recent constitutional treatises — J. A. Jameson. 
Treatise on Constitutional Conventions (4th ed. 1887). sec. 191. Even Judge 
Cooley must long have thought that they could be reconciled with judicial 
decisions, for he wrote in 1883: "Although it has been said . . . that the 
ordinance of 1787 was superseded in each of the States formed out of the 
Northwest Territory by the adoption of a State constitution, and admission 
to the Union, yet the weight of judicial authority is probably the other way" 
— Thomas M. Cooley, A Treatise on the Constitutional Limitations Which 
Rest upon the Legislative Power of the States of the American Union (5th 
ed. 1883), 34 (*p. 25) n. 2. But this was abandoned in the 6th ed. of 1890— 
37 n. 2. 

r>s Cf. Carter, Territorial Papers. 9: 90 (and citations in his n. 10), 100; 
for Jefferson's perplexities see ibid. 204-5, 405-6. But even in that case, 
after unrestricted government of the Territory for a short time, the Ordi- 
nance was in large degree extended over it — see next note. The problems 
of the French settlements in Illinois are referred to post cclxxxvi, ccxcv-ccciv. 

69 Restrictions imposed upon territories were once supposed to raise 
no question of congressional power, which was assumed to be absolute: 
see ante cxxxix, cxliii-v. Restrictions purportedly imposed by enabling or ad- 
mission acts upon new states have already been referred to — ante clvii seq. 
It is an ostensible guaranty of rights to the inhabitants of a territory that 
is here involved, and again there would be no question of the power of 
Congress to grant rights if these were subject to amendment after confer- 
ment. The difficulty is that the enactments here in question were assumed 
to grant irrevocable rights. 

The compact governing the Southwest Territory assured it a "govern- 
ment . . . similar to" that of the Northwest Territory, "provided always 
that no regulations made or to be made by Congress shall tend to emanci- 
pate slaves"; and that Congress should "never . . . bar or deprive" the in- 
habitants of "any privileges" enjoyed by those of the Northwest Territory. 



tinued at least until after the Supreme Court had made clear the fact 
that the rights were not of such nature. This is illustrated by the act 
of 1848 creatine' Oreeron Territory. 70 

The cession deed also stipulated that the ceded territory should be formed 
"into a State or States . . . the inhabitants of which shall enjoy all the 
privileges, benefits, and advantages" of the Ordinance of 1787. That is, 
the guaranty was not in form to the Territory but to the state or states 
that should be formed therein or to the inhabitants thereof — North Carolina's 
act of cession, of Dec. 22, 1789, and deed of cession of Dec. 25 in Carter, 
Territorial Papers, 4: 7, 11-12; act of Congress of April 2, 1790, ibid. 16, 
or U. S. Stat, at Large, 1: 107. 

The act creating Mississippi Territory established "a government in all 
respects similar" to that of the Northwest Territory with the exception and 
exclusion of the article excluding slavery; and provided that "from and after 
the establishment of said government" the Territory's inhabitants should 
enjoy all "the rights, privileges, and advantages" granted by that Ordinance — 
April 7, 1789, Carter, Territorial Papers, 5: 18, sees. 3 and 6;C7. 8. Stat, at 
Large. 1: 549. The extension of the Ordinance to the Territory, and the 
exception as to slavery, were both put upon the basis of a compact between 
the United States and Georgia by that state's subsequent act of April 24, 
1802, which released to the Union all her claims to the territory upon vari- 
ous explicit conditions that were accepted by the United States, including 
the Ordinance's extension with the exception stated. Carter, Territorial 
Papers, 5: 145. 

The act of March 26, 1804 which organized both the Territory of Orleans 
and the District of Louisiana (out of which latter Missouri Territory was 
created) had likewise granted their respective inhabitants specifically 
enumerated personal liberties, but, curiously, not identical liberties — ibid. 
2: 283, sees. 5, 12. The extension to Orleans Territory was of "a govern- 
ment . . . similar ... to that now exercised in the Mississippi territory," 
with the added assurance that inhabitants of the former should "enjoy all 
the rights, privileges, and advantages" secured by the Ordinance of 1787 — 
Act of March 2, 1805, Carter, Territorial Papers. 9: 405; U. S. Stat, at Large. 
2: 322. The act, however, despite the foregoing general words, explicitly 
excepted both the antislavery article and the provisions regulating the de- 
scent and distribution of decedents' estates. When Missouri Territory was 
created by act of June 4, 1812, various personal liberties secured by the 
first three compact articles of the Ordinance of 1787 were guaranteed to 
the inhabitants of the new Territory — U. S. Stat, at Large, 2: 743, sec. 14, 
Carter, op. cit. 14: 558. 

Possibly because Alabama Territory was carved out of Mississippi Terri- 
tory, no guaranty of right was included in the act of March 3, 1817 that 
created it — U. S. Stat, at Large, 3: 371. If such was the reason, its invalidity 
was recognized in other legislation, the contrary practice being followed in the 
acts creating Michigan Territory (out of the Northwest Territory) — Jan. 11, 
1805, ibid. 2: 309, sec. 2; Wisconsin Territory (out of Michigan Territory, after 
an act of June 28, 1834 had added to the original Territory the portions of the 
Louisiana Purchase north of Missouri, which were too sparsely settled to 
be made into states — ibid. 4: 701) — April 20, 1836, ibid. 5: 10, sec. 12; Iowa 
(out of Wisconsin) Territory — June 12, 1838, ibid. 5: 235, sec. 12; and of 
Minnesota (out of Wisconsin) Territory — March 3, 1849, ibid. 9: 403, sec. 12. 
These acts guaranteed all the rights guaranteed by the Ordinance of 1787. 

70 The act shows that delusions still existed respecting the power of 
Congress both to grant irrevocable rights and impose inescapable conditions. 
It read: "The inhabitants of said Territory shall be entitled to enjoy all and 



The basis of the practice may have been nothing more than a 
habit of copying one statute into another; it may have been doubts 
regarding the status of territories under the Constitution ; or the 
draftsmen of such statutes may have acted on a continuing belief that 
the compact articles of the Ordinance of 1787 were of perpetual au- 
thority. In the light of decisions of the Supreme Court it should 
have become increasingly apparent that those articles were merely 
legislation controlling the Old Northwest while it remained a terri- 
tory ; and that attribution to the Ordinance of any other character 
involved either ignorance of judicial construction of the Constitution 
or inattention to such construction. The correct view of their char- 
acter was, indeed, taken by some persons at a very early day. 71 Per- 

singular the rights, privileges, and advantages granted and secured to the 
people of the territory of the United States northwest of the River Ohio, by 
the articles of compact contained in the ordinance" of 1787, "and shall be 
subject to all the conditions, and restrictions, and prohibitions in said 
articles of compact imposed upon the people of said territory" — sec. 14 of 
act of Aug. 14, 1848, U. 8. Stat, at Large, 9: 329. 

7 i In a memorial of March 12, 1810 to Congress, praying relaxation of 
the Ordinance's requirements of 60,000 inhabitants as a precondition to state- 
hood, the legislature of Orleans Territory wrote thus: "That remedy, Legis- 
lators, is in your hands. No constitutional obstacle prevents you from using 
it. The condition . . . can be repealed by the same authority which has im- 
posed it. It does not emanate from the constitution of the United States: 
it emanates from your will. . . . The Articles of Compact which are in- 
cluded in that ordinance cannot be considered as obligatory on us, since we 
stipulated, approved, accepted nothing; and the Ordinance with regard to 
us is a law like the others, emanating solely from your will" — Carter, Terri- 
torial Papers, 9: 875, 876. The Vincennes Convention of 1802 treated the 
slavery compact as mere legislation in asking Congress to suspend its opera- 
tion for ten years; but neither the Convention nor the committees of Con- 
gress which in 1803 and 1805 reported on it ventured any word explicitly as 
to its nature — Ind. Hist. Soc. Publications. 2: 461-76. 

Again the Supreme Court of the United States, in Menard v. Aspasia 
(1831), 30 U.S. (5 Pet.) 505, at 515, had declared of various compacts of the 
Ordinance: "These . . . were designed to secure the rights of the people of 
the territory, as a basis of future legislation [by Congress], and to have 
that moral and political influence that arises from a solemn recognition of 
principles, ichich lie at the foundation of our institutions" (my italics). 
Unfortunately, however, the Court had on the same page called the anti- 
slavery article a "compact . . . formed between the original states, and the 
people of the territory." 

In his opinion in the Dred Scott case, Justice McLean put the re-enacted 
ordinance of 1789 for the Northwest Territory on an exact equality with 
later extensions of it to other territories. "It rested for its validity," said 
he, "on the act of Congress, the same, in my opinion, as the Missouri Com- 
promise" — 60 U.S. at 547. As respects any prohibition or sanction of slavery 
this is quite correct. As respected the right to govern and the duty to 
nurture republican states, two sources of power underlay the Ordinance as 
respects the Northwest Territory, and only one (the Constitution) in all 
other cases. 



haps for that reason to some extent, but undoubtedly for the primary 
reason that the generality and simplicity of the Ordinance became 
increasingly inconsistent with a tendency toward elaborately detailed 
legislation, the practice of "extending" its provisions was abandoned, 
and a practice adopted — certainly very beneficially, although to an in- 
adequate extent — of establishing by specific governmental provisions 
a government adapted to the actual circumstances of each territory. 72 

The practice of Congress in regard to specific compacts of the 
Ordinance may now be briefly considered, as a basis for an understand- 
ing of the quotations which follow from opinions of the Supreme 
Court. In part that practice was consistent and in part it was incon- 
sistent with an assumption that the Ordinance's compacts had an 
authority above ordinary legislation. 

As an example of practice of the former character consider the 
compact that navigable streams emptying into the Mississippi and St. 
Lawrence should forever remain common highways, free to the in- 
habitants of the Territory and to citizens of the United States and 
future states "without any tax, impost or duty therefor." 73 The in- 
troduction of this "compact" into the Ordinance was without basis 
in the terms of Virginia's cession. In consequence of this fact, Vir- 
ginia, in the statute by which she agreed to the admission of Kentucky 
as a state, made it a condition of her consent to the admission 74 that all 
future states bordering on the north shore of the Ohio River should 
enjoy free navigation thereof and concurrent jurisdiction thereover. 75 
Nothing permanent, of course, resulted from her act ; at the most she 
received as her quid pro quo a promise by that Congress; for it alone — 
and not other states — bargained with her. However, faith would be 
kept in such a case, and as a matter of legislative policy, Congress 
thereafter began to insert similar provisions in various statutes. One 
of these was merely an act providing for the sale of public lands in 

72 The vast change in the form of statutes under which territories were 
organized can be seen by comparing the Ordinance with the act organizing 
Oklahoma— May 2, 1890, U. S. Stat, at Large, 26: 81-100. 

73 Carter, Territorial Papers. 2: 48. The same provision was made re- 
specting "the carrying places between" those rivers. In the Wis. Law Rev. 
(1939), 547-62, there is a discussion of the meaning of the Ordinance's clause, 
with particular reference to carrying-places, by Mr. Effland. See especially 
pp. 553-55, 556 for statements of the legal problems involved. 

"* Since Kentucky was part of Virginia, the latter's consent was required 
by the Constitution, Art. IV, sec. 3. 

75 Sec. 11 of act of Dec. 18, 1789— Hening, Statutes. 13: 19-20. 



the Northwest Territory. 76 The others — in which the stipulation more 
perplexingly simulated a super-legislative nature — were enabling acts 
under which were organized states that had navigable streams within 
or on their borders. In the case of the Mississippi River the provision 
seemed so important that it was inserted both in Louisiana 's enabling 
act and in the act declaring her admission to the Union. 77 Essentially 
the same procedure was followed with Minnesota, admitted in 1858. 7s 

Thus, although President Monroe \s cabinet was clear on the ques- 
tion in 1820, 70 Congress was not. Nor were the lower courts. To some 
it appeared (correctly) that admission on an equality with the original 
states must necessarily have relieved the states created in the North- 
west Territory from the obligations imposed upon them before admis- 
sion. On the other hand, in some early cases, both state and federal, 
it was not only held that the obligation of the navigation clause sur- 
vived attainment of statehood, but assumed in the language of the 
courts that the continuing force of the provision was due to its com- 
pact character. 80 

It had come to be recognized, indeed, that not only were those com- 
pacts which duplicated provisions of the federal Constitution thereby 
superseded, but also some of the others. In particular, the change 

"6 Act of May 18, 1796 — V. S. Stat, at Large, 1: 468. 

--Ibid. 2: 701. 

"s It was inserted, namely, in both the act of March 3, 1849, creating the 
Territory and in the enabling act of Feb. 26, 1857, with no explicit reference 
in the act of admission (which, however, accepted the state as having com- 
plied with the enabling act)— U. 8. Stat, at Large. 9: 403, sec. 2; ibid. 11: 285. 
The same condition respecting navigable waters is found in the enabling 
acts of Mississippi, March 1, 1817, ibid. 3: 348, sec. 4; Alabama, March 2, 
1819, ibid. 3: 489, sec. 6; Wisconsin, Aug. 6, 1846, ibid. 9: 57, sec. 3. Like- 
wise in the admission acts of California, Sept. 9, 1850, ibid. 9: 452, sec. 3; 
Oregon, Feb. 14, 1859, ibid. 11: 383, sec. 2. Very likely there were other cases. 

7!) Ante at notecall 55. 

so Hogg v. Zanesville Canal & Mfg. Co. (1832), 5 Ohio Rep. 410. "It is 
a right of which they [the people of Ohio] cannot be deprived unless by 
agreement between the people of the United States, through their repre- 
sentatives in congress, and the people of Ohio, through their representatives in 
the general assembly" — ibid. 422. "While . . . some of the articles of compact 
in that ordinance have been superseded by the admission of the States 
within the North Western Territory into the Federal Union, it has been 
held by repeated judicial decisions, that the solemn guaranty referred to" 
— namely, of free navigation — "is still in force, and is a perpetual inhibition 
to such States from authorizing any impediments or obstruction to the free 
navigation of the water-courses within its scope" — Jolly v. Terre Haute Co. 
(1853), 6 McLean 237, 241; citing Spooner v. McConnell (1838), 1 McLean 
337, Palmer v. Commissioners of Cuyahoga Co. (1843), 3 ibid. 226, and Hogg 
v. Zanesville Canal & Mfg. Co., ante. 



from territorial to state government "necessarily abolished," said 
Justice McLean on circuit, not only provisions for temporary gov- 
ernmental organization but "also such parts as were designed to 
produce a certain moral and political effect. Of the latter description 
were those provisions which secured the rights of conscience, which 
declared that education should be encouraged, that excessive bail 
should not be required &c. . . . And it may be admitted that any pro j 
vision in the constitution of the state, must annul any repugnant pro- 
vision contained in the ordinance. This is within the terms of the ordi- 
nance. The people of the state formed the constitution, and it was 
sanctioned by Congress ; so that there was the ' common consent ', re- 
quired by the compact to alter or annul it." 81 

The propositions were sound, and under the present Constitution 
the reason may stand, even had compacts existed to which, when made, 
"the original states" were parties. The writer has already attempted 
to give an explanation of this. No explanation was ever given by the 
judges who occasionally spoke of the subject and the explanation 
offered has no judicial authority to support it. It has been pointed 
out, however, that it was assumed from the beginning that such action 
by Congress was sufficient, and it seems likely that legal justification 
for the practice must sometime have been formulated. 82 But since no 
compacts were in fact involved, the matter is of no practical 

It was a completely open question at that time (1838) whether 
the legislative powers of Congress in a territory were unrestricted by 
the provisions of the bill-of-rights amendments to the Constitution, 
respecting the personal liberties referred to in the quotation in the 
preceding paragraph. 83 As respects the proposition in the last of the 

si Spooner v. McConnell (1838), 1 McLean at 342-43. 

82 Compare also these later remarks by Chief Justice Dixon: "the adop- 
tion of the constitution of this state, by the free will and vote of the people 
with the assent of the government of the United States, and the subsequent 
admission of the state into the Union . . . abrogates entirely the provision 
of the ordinance wherever its provisions and those of the state constitution 
come in conflict" — The Conn. Mut. Life Ins. Co. v. Cross (1864), 18 Wis. 
109, 115; italics added. See also remarks of Justices McLean and Catron 
in Strader v. Graham (1850), 51 U. S. (10 How.) 97, 98. 

83 Such liberties, when given by Congress to inhabitants of a territory 
are merely matters of internal government of the territory, while such. For 
an early decision to this effect by a state court see Conn. Mut. Life Ins. Co. v. 
Cross (1864), 18 Wis. 109, 115 — jury trial. A dictum to the same effect, 
regarding jury trial in Iowa (which was not part of the Northwest Terri- 



quotation, Justice McLean did not apply it to the free-navigation and 
the antislavery clauses. There being nothing in these, he said, repug- 
nant to equality of the states, and nothing in the constitution of Ohio 
repugnant to those clauses, they were still "in full force," and alter- 
able only by joint action of Congress and the state legislature. 84 The 
proposition that a provision of a state constitution, if inconsistent with 
a provision of the Ordinance, would nullify this, was slightly too 
broad. As to this excess, only, it was erroneous, as will be pointed out 
below. 85 

Ultimately, in 1845, it was held by the Supreme Court of the 
United States that a stipulation in the enabling act for Alabama re- 
garding its navigable waters (in words similar to those of the Ordi- 
nance of 1787) — notwithstanding that it was in the strict form of a 
compact, and one ostensibly imposed in consideration of public lands 
Granted to the state 86 — was no more than an exercise by Congress of its 
power to regulate interstate commerce." The case required considera- 

tory, the provision being borrowed from the Ordinance) is to be found in 
Hawkins v. Bleakly (1916). 243 U.S. 210, at 217-18. See also Cincinnati v. 
Louisville & Nashville R. R. Co. (1911), 223 US. 390, at 401 seq. on the 
power of eminent domain as stated in the Ordinance of 1787. 

* 4 Spooner v. McConnell, ante n. 80, 343 seq., particularly at 349, 351. 
The discussion is of the navigation clause but recognizes that the antislavery 
article is subject to the same reason. Justice McLean's view, of course, is 
inconsistent with the facts (1) that mere repetitions of the Constitution in 
statutes have no more legal force than quotations of them in these pages, 
and (2) that practically speaking — ante cxcix-cciii — the supposed continuing 
compact had no reality. 

ss A glimmer of the true test of the temporary or continuing force of the 
Ordinance's various provisions obtruded into the compact phraseology of the 
Spooner case, and became a little brighter in another case decided by 
Justice McLean a few years later. In the Spooner case he said: "What legis- 
lative power Congress may exercise over these rivers, under the power to 
regulate commerce among the several states, it does not seem necessary now 
to determine. Any law on this subject" — passed under that power — "must 
be general in its provisions and consequently apply to all the States" — 1 
McLean at 354. Legislation respecting particular rivers could not be "gen- 
eral," nor good, therefore, under that power. The authority of the rules- 
and-regulations clause, however, covers such particularities; and the Ordi- 
nance clause did protect the rights of citizens of all states in conformity to 
the Constitution's requirement, by Art. IV, sec. 2, sub-sec. 1. Five years 
later he said: "A state, by virtue of its sovereignty may exercise certain 
rights over its navigable waters, subject, however, to the paramount power 
in congress to regulate commerce among the several states" — Palmer v. 
Commissioners of Cuyahoga Co., ante n. 80, at 227 (italics added). 

86 See ante clxi. 

87 Pollard's Lessee v. Hagan (1845) 44 U.S. (3 How.) 212, at 229. Con- 
gress may, in admitting a new state, require as a condition what amounts 
to a regulation of interstate commerce, or of commerce with the Indian 



tion of the extent and nature of the rights of the United States within 
the several states, and therefore of the nature of its rights in the pub- 
lic lands held therein, and also of the question whether its rights could 
be in anywise affected by compacts made by Congress with new states 
when admitted to the Union. 88 Upon these matters the Court, in Pol- 
lard's Lessee v. Hagan (1845), spoke as follows: 

Taking the legislative Acts of the United States, and the States 
of Virginia and Georgia, and their deeds of cession to the United 
States, and giving to each, separately, and to all jointly, a fair inter- 
pretation, we must come to the conclusion that it was the intention of 
the parties to invest the United States with the eminent domain of the 
country ceded, both national and municipal, for the purposes of 
temporary government, and to hold it in trust for the performance of 
the stipulations and conditions expressed in the deeds of cession and 
the legislative acts connected with them. . . . When the U. S. accepted 
the cession . . . they took upon themselves the trust to hold the munici- 
pal eminent domain for the new states, and to invest them with it, to 
the same extent, in all respects, that it was held by the states ceding 
the territory .... 

When Alabama was admitted into the Union . . . Nothing re- 
mained in the United States, according to the terms of the agreement, 
but the public lands. . . . The object of all the parties to these con- 
tracts of cession, was to convert the land into money for the payment 
of the debt, [that is, "the public debt, incurred by the war of the 
Revolution"] and to erect new states over the territory thus ceded. . . . 

Whenever the United States shall have fully executed these trusts, 

tribes, etc. "But in any case such legislation would derive its force . . . 
solely because the power of Congress extended to the subject, and, there- 
fore, would not operate to restrict the State's legislative power in respect 
of any matter which was not p.ainly within the regulating power of Congress. 
Willamette Iron Bridge Co. v. Hatch, 125 U.S. 1; Pollard v. Hagan, 3 How. 
212"— Coyle v. Smith (1910), 221 U.S. 559, 574; see ante clxii-iii. Compare 
ex parte Webb (1911), 225 U. S. 663, 690. 

88 The case was ejectment for a Mobile lot. Plaintiff's title rested on 
a government patent and the statute under which that was issued. The jury 
was charged that even if the premises were below usual high-water mark the 
United States patent and statute gave him no title. Verdict and judgment 
being for the defendant, and judgment affirmed in the Supreme Court of 
Alabama, the case went to the federal Supreme Court on the question whether 
the instruction stated was correct; and this was answered affirmatively. 

The enabling act of March 2, 1819 under which Alabama was organized 
as a state, cited ante n. 78, contained a stipulation regarding navigable 
streams almost identical with that of the Ordinance of 1787. Query, 
whether by virtue of this the United States had any special rights to the 
shores of or soil under navigable streams? Affirming the holding of the 
Pollard case that it had none, cf. Knight v. U. S. Land Assoc. (1891), 142 
U.S. 161, 183 



the municipal sovereignty of the new States will be complete, through- 
out their respective borders, and they, and the original states, will be 
upon equal footing, in all respects whatever. "We, therefore, think 
the United States hold the public lands within the new states by force 
of the deeds of cession, and the statutes connected with them, and not 
by any municipal sovereignty which it may be supposed they possess, 
or have reserved by compact with the new states for that particular 
purpose. . . . 

Then to Alabama belong the navigable waters and soils under 
them . . . subject to the rights surrendered by the Constitution to 
the United States; and no compact that might be made between her 
and the United States could diminish or enlarge those rights. . . . 

The declaration . . . contained in the compact entered into between 
them [the United States and Alabama] when Alabama was admitted 
into the union ... is a mere regulation of commerce among the several 
states, according to the Constitution, and, therefore, as binding on the 
other states as Alabama. . . . This right of eminent domain over the 
shores and soils under the navigable waters, for all municipal pur- 
poses, belongs exclusively to the states within their respective terri- 
torial jurisdictions, and they, and they only, have the constitutional 
power to exercise it. To give to the United States the right to trans- 
fer to a citizen the title to the shores and soils under the navigable 
waters . . . might . . . deprive the states of the power to exercise a 
numerous and important class of police powers. 80 

The first point realty settled judicially was that there was no com- 
pact, no contract, in the Ordinance which bound the inhabitants of the 
Territory after their admission as a state. This has often been re- 
peated by the Supreme Court. 110 The Court has frequently spoken — 
in cases in which the decision, and even other parts of the opinion, 
were pointedly to the contrary — as though nothing remained of the 

89 44 U.S. at 222, 223, 224, 229, 230. Accord: Shively v. Bowlby (1893), 
152 U.S. 1; McGilora v. Ross (1909), 215 U.S. 70. This doctrine that the 
state alone has property in the land under navigable waters in the sense 
that Congress cannot convey or control title thereto, does not exhaust the 
question of national control. See Van Brocklin v. State of Tennessee (1886), 
117 U.S. 151, 167-69. 

'•'" "There was no contract in the fourth article of the Ordinance of 17S7 
respecting the freedom of . . . navigable waters . . . which bound the peo- 
ple of the territory, or of any portion of it, when subsequently formed into 
a State and admitted into the Union. . . . Yet from the very conditions on 
which the States formed out of that territory were admitted into the Union, 
the provisions of the Ordinance became inoperative except as adopted by 
them. All the States thus formed were . . . 'admitted into the Union on an 
equal footing with the original States in all respects whatever' " — Justice 
Field, in Sands v. Manistee Riv. Imp. Co. (1887), 123 U.S. 288, 295-96. 



Ordinance after admission of a state. 01 This is subject to a slight ex- 
ception. "To the extent pertained to internal affairs" of the 
Northwest Territory — that is, to the Territory strictly as such : its 
temporary frame of government, the political and personal rights of 
its inhabitants thereunder — "the Ordinance of 1787 — notwithstanding 
its contractual form — was . . . superseded by the admission of Illinois 
into the Union 'on an equal footing with the original States in all 
respects whatever'. . . . But, so far as it established public rights of 
highway in navigable waters capable of bearing commerce from State 
to State, it did not regulate internal affairs alone, and was no more 
capable of repeal by one of the States than any other regulation of 
interstate commerce enacted bv Congress." 92 

! " As in the passage in the preceding note. In another opinion Justice 
Field said: The Ordinance "could not control the authority and powers of 
the State after her admission. Whatever the limitations upon her powers 
as a government whilst in a territorial condition, whether from the Ordinance 
or [!] the legislation of Congress, it ceased to have any operative effect, 
except as voluntarily adopted by her after she became a State of the Union" 
— Escanaba Co. v. Chicago (1882), 107 U.S. 678, 688. Similarly, Justice 
Gray wrote: "the Ordinance of 1787, like all acts of Congress for the govern- 
ment of the Territories, had no force in any State after its admission into 
the Union under the Constitution. Permoli v. First Municipality of New 
Orleans, 3 How. 589, 610; Strader v. Graham, 10 How. 82" — Van Brocklin v. 
Tennessee (1886), ante n. 89, at 159. And Justice Bradley wrote: "This 
court has held that when any new State was admitted into the Union from 
the Northwest Territory, the Ordinance in question ceased to have any opera- 
tive force in limiting its powers of legislation as compared with those of 
the original States"— Willamette Bridge Co. v. Hatch (1887), 125 U.S. 1, 9. 
These are only examples. 

»2 Economy Light Co. v. United States (1920), 256 U.S. 113, 120— citing 
Permoli v. First Municipality (1845), 44 U.S. 589; Van Brocklin v. Ten- 
nessee, ante n. 89; Hawkins v. Bleakly (1916), 243 U.S. 210, 217. 

Even so, it still remained to fix the meaning of the guaranty that the 
navigable waters of the Territory should be "forever free," equally to the 
inhabitants of the Territory and to the citizens of all states then existing 
and thereafter created, "without any tax, impost or duty therefor." In a 
long line of cases it was gradually established that the only absolute pro- 
hibition is that respecting taxes — see especially Cardwell v. Amer. Bridge 
Co. (1884), 113 U.S. 205, 212; in other words, "political" restrictions. The 
Court early declared: "It cannot be imputed to Congress that they ever de- 
signed to forbid, or to withhold from the State of Mississippi, the power 
of improving the interior of that State, by means either of roads or canals, 
or by regulating the rivers within its territorial limits, although a plan of 
improvement . . . might . . . affect the course or flow of rivers" — -Withers 
v. Buckley (1857), 61 U.S. (20 How.) 84. 93. Over the construction of dams, 
bridges, etc. the states therefore retain authority, and they may create 
partial obstructions without violating the Ordinance or similar later statutes 
so long as such obstructions are in substance internal improvements author- 
ized under the police power of the state. Withers v. Buckley, ante; Pound 
v. Turck (1877), 95 U.S. 459; Escanaba Co. v. Chicago, ante n. 91; Cardwell 



The law, then, is that — after eliminating provisions which could 
apply only to the government of the Territory as such and lost force 
with its termination, and disregarding provisions that duplicated 
clauses of "the Constitution but never had (after its adoption) inde- 
pendent force — some other portions had enduring force, and would 
have been superior even to conflicting provisions in the constitutions 
of states created from that Territory. But this was not because 
compacts were involved, but only because constitutional legislation 
by Congress was involved. Enactments of Congress concerning a 
territory, as such, are supported by the rules-and-regulations clause. 
But if unchanged when a territory becomes a state they may survive 
as enactments under other powers given to Congress by the Constitu- 
tion — as the navigation clause of the Ordinance fell under the inter- 
state-commerce clause ; provided they are also consonant with all other 
requirements of the Constitution — as the navigation clause was con- 
sonant with its privileges-and-immunities requirement. The form of 
congressional action is of no importance. 03 Of course, too, all that is 
said above of the effect of the original Ordinance as re-enacted in 
1789 is equally true of "extensions" of that enactment made to other 
territories, and most of the cases cited in the notes involved these other 

The legislative history, in later acts of Congress, of the Ordinance 
article guaranteeing freedom of religion need not be stated in detail. 
In a case decided by the Supreme Court in the same year (1845) as 
the Pollard case, above quoted, the question presented was whether 
the Supreme Court had jurisdiction to consider whether a city ordi- 
nance of New Orleans had impaired religious liberty. 04 

v. Amer. Bridge Co.. ante; Hamilton v. Vicksburg R. R. Co. (1886), 119 U.S. 
280; Sands v. Manistee Riv. Imp. Co. (1887), ante n. 90; Willamette Iron 
Bridge Co. v. Hatch (1887), ante n. 91. And until Congress acts the states have 
p'enarv powers of legislation, as various of the preceding cases hold. 

51:1 For example, in the Cardwell case, the Willamette case, and the 
Withers case the restriction was imposed in acts which, respectively, ad- 
mitted California, Oregon, and Mississinpi to the Union. 

<)4 "The ordinances complained of," said the Court, "must violate the 
Constitution or laws of the United States, or some authority exercised under 
them; if they do not. we have no power ... to interfere. The Consti- 
tution makes no provision for protecting the citizens of the respective states 
in their religious liberties; this is left to the state constitutions and laws: 
nor is there any inhibition imposed by the Constitution of the United States 
in this respect upon the states. We must therefore look beyond the Consti- 
tution for the laws that are supposed to be violated, and on which our 
jurisdiction can be founded" — Permoli v. First Municipality of New Orleans 



As a basis for its decision, which disclaimed jurisdiction, it was 
necessary to inquire (a) whether provisions of the Ordinance of 1787 
that were extended to Orleans Territory by an act of 1805 05 had any 
independent force as federal law in Louisiana after adoption of its 
constitution in 1812 — for, if they had, jurisdiction might be based 
thereon; and (b), as in the Pollard case, whether any basis for juris- 
diction could be found in the relation of the United States to the public 
lands reserved in that state by the enabling' act of Congress under 
which it was admitted to the Union. The acts of Congress, in addi- 
tion to the Ordinance, which required examination were two. That 
of February 20, 1811 nG authorized the people of the Territory of 
Orleans to form a constitutional convention, including a requirement 
that the constitution should contain the fundamental principles of civil 
and religious liberty. By another act of April 8, 1812 9T Louisiana 
was admitted according to the mode prescribed by the act of 1811. 
Thus, having accepted the constitution and admitted the state "on an 
equal footing with the original states in all respects whatever," noth- 
ing of those statutes could survive as a federal law whose violation 
could be a basis for jurisdiction. On the Ordinance the Court spoke 
as follows : 

The principal stress of the argument for the plaintiff in error 
proceeded on the Ordinance of 1787. ... In the Ordinance, there are 
terms of compact declared to be thereby established, between the origi- 
nal states, and the people in the states afterwards to be formed north- 
west of the Ohio, unalterable, unless by common consent — one of which 
stipulations is, that "no person demeaning himself in a peaceable man- 
ner, shall ever be molested on account of his mode of worship, or reli- 

(1845), 44 U.S. (3 How.) 589, at 609. This is the leading case for the point 
that the Constitution places no inhibitions on the states in their control of 
religious liberties. See Ohio v. Dollison (1903), 194 U.S. 447; Bolln v. 
Nebraska (1899). 176 U. S. 87; Brown v. New Jersey (1899), 175 U.S. 174; 
Spies v. Illinois (1887), 123 U.S. 131. 

Sixteen states were purportedly restrained, in enabling or in admission 
acts, from interfering with religious liberty. Religious freedom is not a 
privilege of United States citizens by force of the First Amendment, and 
it is therefore not protected as such under the privi'eges-and-immunities 
clause of the Fourteenth Amendment. See U. S. v. Cruikshank (1875), 
92 U. S. 542; Slaughterhouse Cases (1872), 183 U.S. (16 Wall.) 36, at 74; 
Duncan v. Missouri (1893), 152 U.S. 377, at 382. 

as Of March 2, 1805— U. 8. Stat, at Large, 2: 322, sec. 1; Carter, Terri- 
torial Papers, 9: 405. 

90 u. S. Stat, at Large. 2: 641 

97 ibid. 701. 



g'ious sentiments, in the said territory". For this provision is claimed 
the sanction of an unalterable law of Congress ; and it is insisted the 
city ordinances above have violated it ; and what the force of the 
ordinance is north of the Ohio, we do not say, as it is unnecessary for 
the purposes of this case. But as regards the state of Louisiana, it had 
no further force, after the adoption of the state constitution, than other 
acts of Congress organizing, in part, the territorial government of 
Orleans, and standing in connection with the ordinance of 1787. So 
far as they conferred political rights, and secured civil and religious 
liberties, (which are political rights,) the laws of Congress were all 
superseded by the state constitution ; nor is any part of them in force, 
unless they were adopted by the constitution of Louisiana, as laws of 
the state. ... It follows, no repugnance could arise between the Ordi- 
nance of 1787 and an act of the legislature of Louisiana, or a city regu- 
lation founded on such act ; and therefore this court has no jurisdic- 
tion on the last ground assumed, more than on the preceding ones. In 
our judgment, the question presented by the record is exclusively of 
state cognizance, and . . . the writ of error must be dismissed. 98 

►So much for illustrations of congressional action seemingly, but 
only seemingly, consistent with the idea that Congress could make com- 
pacts of immutable character. Along with the practice just discussed 
there existed from the beginning practices that were plainly irrecon- 
cilable with that idea, and sometimes the same enactment contained an 
implicit declaration of immutability, in general, alongside particular 
provisions inconsistent with that quality. For example, the enabling 
act of Indiana contained the condition that its constitution should not 
be "repugnant to those articles of the Ordinance" of 1787 "which are 
declared to be irrevocable between the original states and the people 
and states of the Territory northwest of the river Ohio; excepting" 
the boundary provisions set by that instrument for states to be formed 
from said Territory. 1 '" The enabling act under which Illinois became 
a state simply required conformity "to the ordinance," with the same 
exception. 1 "" 

It has been seen that when departures had been earlier made from 
the terms of the compacts with Virginia and Georgia, validation of 
such violations had been sought from those states, and that their legis- 

ts Permoli v. First Municipality of New Orleans, 44 U.S. 5S9, at 610. 

•"■'Act of April 19, 1816— U. 8. Stat, at Large. 3: 289. 

wo Act of April 18, ISIS, sec. 4— ibid. 3: 42S. Some readers will doubt- 
less feel that there was not, in these cases, any implicit general declaration 
of immutability. If not, such enactments are merely more unqualifiedly 
contradictory of that quality. 



latures had sought to grant such validation, though their acts were of 
decidedly doubtful efficacy (particularly after 1789) to create obliga- 
tions binding the states. And in another case in which a provision of 
the Ordinance had no basis in Virginia 's compact with the Confedera- 
tion (though as legislation and in form it met her desires) she tried 
to give it compact character by imposing (again, merely by act of her 
legislature) a condition to that effect upon her consent to action by 
Congress on another matter, as to which her consent was indispensable 
to the validity of congressional action. 101 

Because of the controversy over slavery that arose in different 
portions of the Old Northwest, and was particularly violent in Illinois, 
the question whether the Ordinance had permanent or only transitory 
force received attention, primarily, in connection with its antislavery 
article. Consideration of that question has ranged over an unneces- 
sarily wide field. It has not infrequently been stated that property in 
general or property in slaves was recognized or guaranteed by the 
treaties of 1763 and 1783, in the sense (shown by the context) that 
titles thereto were permanently assured or guaranteed. These state- 
ments are wholly erroneous. As regards the Northwest Territory there 
would probably be no need, in this connection, to consider either the 
provisions of the treaty of 1763, or the actions of General Clark during 
the conquest of the Illinois Country, or the provisions of the Virginia 
statute which thereafter established the County of Illinois. Anything 
in the treaty that was inconsistent with Virginia's later legislation 
before her cession of land and jurisdiction to the Confederation, or 
with subsequent legislation of the latter, would seemingly have been 
overridden (no matter whether wrongly) by such legislation. And 
anything in the legislation of the new Congress that was inconsistent 
with Virginia's legislation would have overridden the latter, unless 
the former violated the cession compacts that have repeatedly been 
stated as consummated by Virginia's cession. But, those propositions 
aside, as a matter of fact nothing in the treaty of 1763 had any bearing 
on the problem. 

1(11 See ante at notecalls 33, 38, 61 for situations of the first type, and 
at notecall 74 for an instance of the second type. 

In all the cases here in question action by Congress was assumed to 
constitute consent by "the original states" if it was understood that a com- 
pact was being altered — as the language used (indicating exceptions) would 
indicate; and action by Virginia's legislature was assumed to bind Virginia. 



By the treaty of 1763 (article 4) Great Britain agreed that French 
subjects might "retire, with all safety and freedom, wherever they 
shall think proper, and may sell their estates, provided it be to sub- 
jects of his Britannic Majesty, and bring away their effects, without 
being restrained, under any pretence whatsoever, except that of debts, 
or of criminal prosecutions." General Gage's proclamation gave 
literal effect to these provisions. 102 Here was no continuing guaranty 
of anything, merely safe withdrawal with personal property and re- 
stricted liberty to sell landed property presently owned; no guaranty 
for the future as to either. It would seem impossible that anybody 
could read the treaty and imagine that it did more than guard against 
spoliation at the time of transfer of sovereignty. Historians have 
nevertheless very generally misconstrued it. 103 Such provisions have a 
long history in international relations. They represent a stage in the 
history of war. 

Until down into the eighteenth century there was a general preva- 
lence of the doctrine that war is conducted not merely against an 
enemy state and its armed forces but also against its citizens. . . . The 
principle also prevailed that law was properly self-supporting ; a con- 
quering power took whatever it desired out of a country occupied by 
its military forces. . . . The idea that war is conducted solely against 
an enemy state and its armed forces, not against its peaceful citizens, 
attained dominance in Europe only in the eighteenth century. Of 
decisive influence in establishing it were the oft-quoted words of Jean 
Jacques Rousseau. . . . 104 After his memorable pronouncement the 

102 Dec. 30, 1764, American State Papers, Public Lands. 2: 209; Illinois 
Historical Collections. 10: 395. 

io3 Hinsdale wrote: "The capitulation of 1760 and the treaty of 1763 
guaranteed the full protection of all the property of the people who were 
transferred" — Old Northwest, 348; and his context shows he understood 
this to be a general guaranty. Similarly, Justin Winsor wrote that "There 
were four or five thousand French and half-breeds in the Illinois country, 
whose rights of property had been guaranteed in the treaties of 1763 and 
1782, and human servitude prevailed among them" — Westward Movement. 
288. For this statement there is no basis whatever. Clarence Alvord wrote 
that "the Illinois people were protected in their land titles by the treaty 
of peace of 1763," — qualifiedly, yes, as respected sale to British subjects 
only of what they then owned, but nothing more — "that of 1783," — not at 
all (there was nothing in the treaty remotely suggestive of the subject)- — 
"and by the cession of Virginia in 1784" — The Illinois Country. 1673-1SIS 
(1920), 417 n. The writer was himself guilty in an earlier volume of re- 
peating the error he is now correcting, and failed to remove it, though cor- 
recting it a few pages later — Philbrick, Laics of Indiana Territory (I.H.C. 
21), xxxv and n. 4; the statement on xxiii is incorrect; and as to that on 
xxxv see post n. 116. 

io* "La guerre n'est done point une relation d' homme a homme, mais 



complete immunity of private property became a firm principle in the 
law of war on land. 105 

In the transitional period while the humaner principle was gain- 
ing' dominance treaties frequently provided that conquered sub- 
jects might remain, and in continued enjoyment of their property, 
during good behavior, or allowed them a reasonable time to remove 
after the sale of their property. Such treaties were very numerous ; 
that of 1763 and Jay's Treaty were merely illustrations of this humane 
practice. 106 To this principle of the inviolability of private property 
our government has, of course, been committed throughout our his- 
tory. 107 But there was nothing in these principles or in the treaty of 
1763 that could in any way constrain the United States in subsequently 
denying to all residents of the Northwest, if it so desired, the right to 
hold slaves. As for the treaty of 1783, it contained nothing what- 
ever pertinent to the question before us. 

Ignoring, therefore, the treaties of 1763 and 1783 — both often re- 
ferred to in this connection — we have onlv to consider the acts of 

une relation d'Etat a Etat dans laquelle les particuliers ne sont ennemis qu' 
accidentalement, non point comme homines, ni meme comme citoyens, mais 
comme soldats. . . . Enfin, chaque Etat ne peut avoir pour ennemi que 
d'outres Etats, et non pas des hommes" — Du Contrat Social (Edm. Dreyfus- 
Brissac, ed., Paris, 1896), Bk. I, ch. 4. 

los Franz Scholz, Privateigentum im besetzten und unbesetzten Feindes- 
land (1919), 15-16. "The Hague Regulations . . . declare private property 
on hostile territory inviolate. This is merely a repetition of maxims which, 
though often disregarded in practice, had long become firmly established 
in international law" — A. Latifl, Effects of War on Property (1909), 29; 
compare 60. "Even Bynkershoek and Wolf ... at the commencement of 
the eighteenth century, assert the broad principle, that everything done 
against an enemy is lawful. . . . Such, however, was not the sentiment and 
practice of enlightened Europe at the period when they wrote" — Henry 
Wheaton, History of the Laic of Nations (8th Eng. ed. by Keith, 1939), 707. 

toe in T. D. Woolsey, Introduction to International Law (5th ed. 1918), 
sec. 123, note the reference to the long list compiled by W. O. Manning in 
his Commentaries on the Law of Nations (1839). Wheaton dated "the 
modern law of nations" from the treaty of 1763 — op. cit. (1st ed. 1845), 269; 
he said nothing, however, of the treatment of private enemy property in 
war on land. The practice of allowing time to sell property and remove 
the proceeds is still regular in the treatment of nonresident aliens who take 
title to property (particularly land) from nationals by inheritance or de- 
vise—see C. C. Hyde, International Law, Chiefly as Interpreted by the 
United States (2d ed. 1945), 1: 652 at notecalls 9-12. 

107 "The modern usage of nations . . . would be violated ... if private 
property should be generally confiscated, and private rights annulled. The 
people change their allegiance; . . . but . . . their rights of property, re- 
main undisturbed"— U. S. v. Percheman (1833), 7 Pet. (33 U.S.) 51, 86-87, 
per Marshall, Ch. J. 



Virginia and of the Confederation. And what Virginia did before she 
deeded the Old Northwest to the Confederation on March 1, 1784 is 
of interest only as throwing light on the meaning of that conveyance. 108 

That deed recited that the soil and jurisdiction were transferi'ed 
subject to stated conditions, one of them being: "That the French 
and Canadian inhabitants, and other settlers of the Kaskaskies, St. 
Vincents, and the neighbouring villages who have professed them- 
selves citizens of Virginia, shall have their possessions and titles con- 
firmed to them, and be protected in the enjoyment of their rights and 
liberties." This condition was accepted by Congress. 1 "" It was there- 
fore a compact in the strict sense, but there was no provision in the 
compact that it should be alterable by joint consent only, or that com- 
mon consent might be manifested in a particular manner only. Two 
questions arise regarding it. 

The first question is : In the absence of extrinsic evidence of the 
parties' intent, what meaning should be given to this provision? A 
great number of somewhat similar provisions have occurred in treaties. 
They have not been treated as contradicting either of two basic prin- 
ciples: the first, that when political jurisdiction over a territory 
passes from one sovereignty to another the existing laws for the pro- 
tection of property continue in force until modified by the new 
sovereign ; and, secondly, that that sovereign, save in so far as explicitly 
bound to the contrary, has full power to determine the rights of its 
nationals, and a fortiori of resident aliens, to hold as property any- 
thing within its boundaries; and the power to fix the mode of ac- 
quiring and transferring rights therein. Such a provision, therefore, 
as the condition in Virginia's deed could not properly be construed as 
meaning that the guaranteeing power could never in the future alter 

108 Governor Henry's secret instructions to Clark of Jan. 2. 1778 were, 
that the loyal "be treated as fellow Citizens, & their persons & property be 
duly secured" — J. A. James, George Rogers Clark Papers. 1771-1781 (I.H.C. 
8), 34. Clark's proclamation to the residents of Vincennes (and doubtless 
his assurances to those of Kaskaskia) were to the same effect — ibid. 52. 
And Virginia's statute of Dec. 9, 1778, which followed the conquest and 
created the County of Illinois, assured the inhabitants freedom of "religion, 
which the inhabitants shall fully, and to all intents and purposes enjoy, 
together with all their civil rights and property" — Hening. Statutes, 9: 
553. Could anyone reasonably contend that here was a guaranty that they 
should continue to enjoy indefinitely thereafter their "civil rights and 
property" unchanged by Virginia legislation? — any more than that they 
should continue to enjoy their religion as it then was? 

109 Jour. Cont. Cong. 26: 114, 25: 560, 562. See ante n. 31. 



the content of the property rights so recognized. It would seem, aside 
from authority, impossible to assume that the right guaranteed calls 
for any greater protection than that which would be accorded to prop- 
erty of a similar kind, owned at the same place and time by citizens 
of the guaranteeing power. This practice was perfectly expressed in 
the treaty for the purchase of Louisiana from France: "The inhabi- 
tants shall be . . . admitted as soon as possible ... to the enjoyment of 
all the rights ... of citizens of the United States ; and in the meantime 
they shall be maintained and protected in the free enjoyment of their 
liberty, property, and the religion which they profess." 110 If a 
country has the right to deny to its own citizens all individual prop- 
erty right in coal lands, or in gold, or in slaves — could it conceivably 
be held, unless by a provision most clear and explicit, to have deprived 
itself of that power as respects such property owned by aliens? The 
Supreme Court of the United States gave a negative answer to that 
question in construing a provision very similar to that in the Ordi- 
nance in a treaty of the Confederation era relating to residents of con- 
tinuing alien status. 111 The basis of this view is, in fact, mere common 
sense. There is no authority to the contrary. 

The situation of the French inhabitants of Illinois and Louisiana 
Avas different in that they were about to become citizens. Becoming 

no Art. 30. But nothing can be so plain as to be safe against partisan inter- 
pretation. See Justice Catron's argument in the Dred Scott case — ante 
n. 239, Sec. II. As other judges pointed out, all of Louisiana where slaves 
were held in 1803 had long before the decision of that case (1857) been 
organized into states already in the Union, and the inhabitants owning 
slaves in 1803 had been protected in their enjoyment of such property. But 
that no requirement of that protection had actually been intended seems 
clear. At all events, even if restriction of the power of Congress was intended, 
and had the treaty been violated, the statute would have been valid. See 
the opinions of Justices McLean and Curtis — 60 U.S. at 557, 630-33. 

The treaty of 1819 with Spain (art. 6) omitted the provision following 
the semicolon in the above quotation. 

mTodok v. Union State Bank (1930), 281 U.S. 449. In a treaty of 1783 
with Sweden it was provided that the subjects of each power in the territory 
of the other might freely dispose of their "goods and effects" (here construed 
to include land) as they should desire. Homesteads were later created by 
Nebraska law, and the joinder of husband and wife was required for their 
conveyance. Held, not a violation of the treaty. "It is not to be supposed 
that the treaty intended to secure the right of disposition in any manner 
whatever regardless of reasonable regulations in accordance with the prop- 
erty law of the country of location, bearing upon aliens and citizens alike" — 
ibid. 455. Compare post n. 140. 

The guaranty ("saving") to the French inhabitants of the Illinois 
Country, as an exception, of their local law of descent and conveyance was 
stronger than that involved in the treaty with Sweden. 



such, their legal position would have been strengthened had there been 
in 1787 or 1789 any constitutional provisions under which they could 
have claimed protection ; but there were no such provisions. Assum- 
ing that there was no other class of citizens in the Territory (ignoring 
a few individuals) holding slaves, the situation was that of denying 
to one class the right to acquire slaves, and of nullifying the titles to 
slaves already held by another class. This could not affect the legal 
power to nullify the titles so held, but it could raise questions of 
justice and discretion. It was, in fact, solety the law's retroactive 
operation on the titles of the French inhabitants that led to its non- 

And, again, what intent should be attributed to A^irginia? The 
language used did not explicitly bar future regulation or alteration of 
titles to all types or any type of property ; still less was it an explicit 
guaranty of property in slaves in particular. If it was intended to be 
anything more than the usual guard, in international transfers of in- 
habited territory, against wholesale expropriations and evictions by 
the new suzerain (such as was involved in the treaty of 1763), the lan- 
guage was notably inapt. It seems clear that its most natural inter- 
pretation would be that it was not intended as a guaranty of con- 
tinued recognition of slavery. The strength of antislavery sentiment 
in Virginia at that time must not be overlooked. All Virginians knew 
that their state could abolish slavery ; whether it should be abolished 
was a live issue in the 1780 's. If it had been intended to for old in- 
terference with slavery in all or any portion of the Northwest Terri- 
tory, is it reasonable to believe that Virginia would have phrased as it 
was phrased the condition above quoted? It was so framed in a 
cession offer of January 2, 1781 ; 112 there was ample time to reconsider 
its phrasing, for it was approved by Congress only on September 13. 
1783 113 and on the following March 1 Jefferson, immediately after 
delivering Virginia's deed in which the condition was again recited, 114 
presented his draft of an ordinance for the government of all federal 
territory, north and south, with a clause forbidding slavery in any of it 
after 1800. 115 Could anybody desire more convincing evidence that 

i^Hening, Statutes, 10: 364. 
us Jour. Cont. Cong. 25: 560, 562. 

ii4 ibid. 26: 114. The deed was signed by Jefferson, Samuel Hardy, 
Arthur Lee, and James Monroe — ibid. 113, 117. 
us IMd. 119. 



Virginia did not understand her cession condition to preserve slavery 
forever 1 

But assume the contrary of what has just been presented as rea- 
sonable — assume that Virginia did desire to preserve slavery in the 
Illinois settlements forever, and that her cession condition as it stood 
unaltered from 1781 to 1784 and continued thereafter should have 
been construed as a strict compact, in that sense, with the Confedera- 
tion. The second question is : What formalities would it seem reason- 
able to require in order to get rid of that compact? Technically, the 
compact could not be unilaterally altered or rescinded ; action would 
be necessary by the General Assembly of Virginia and by the delegates 
in Congress of the other states acting under special instructions. But 
when -the Ordinance of 1787 purportedly abolished slavery, this being 
by hypothesis a violation of the compact of which Virginia might 
complain, it would certainly be permissible language to say that she 
waived the violation ; and — in fact — the compact itself would not be 
of a nature to continue thereafter. From a common-sense point of 
view, therefore, the writer feels that he was justified in suggesting in 
an earlier volume that Virginia was free to renounce any claims under 
the conditions in her cession deed, and did so as respects the Ordi- 
nance's prohibition of slavery 110 — if, indeed, that had violated the 

But did it violate the condition? The answer to that question 
depends on a double uncertainty. There was no violation if the intent 
of Virginia and the legal meaning of the condition (assuming no in- 
dicated contrary intent) in her deed to the Confederation are correctly 
construed above. And there was also no violation if the provision in 
the Ordinance was not intended to abolish slavery. On this last point, 
also, opinions have been various. 

There are several provisions of the Ordinance to consider. The 
first one has been assumed by many historians to correspond to the 
condition of Virginia's deed, but there are six good reasons why this 
assumption is erroneous. Because, (1) though that condition was 
undoubtedly a compact, the provision in the Ordinance was not in- 

H6 The words used are open to improvement: "Clearly Virginia might 
(and did) renounce under the Ordinance the conditions set in her deed of 
cession" — Lairs of Indiana Territory (I.H.C. 21), xxxv n. 4. Only one con- 
dition is involved; and renunciation was not by her delegates' vote for the 
Ordinance, or "under" the Ordinance, but by acquiescing in the postulated 



eluded among the provisions labeled "compacts" in that instrument. 
Instead, (2) it was put by Dane among the provisions relating to 
descent, wills, and conveyances, and preserved none of the essential 
language of the condition in Virginia's deed. It recited merely a 
"saving ... to the french and Canadian inhabitants & other settlers 
of the Kaskaskies, St. Vincents and the neighbouring villages who . . . 
[had theretofore] professed themselves citizens of Virginia, their laws 
and customs relative to the descent & conveyance of property." 111 
Moreover, (3) this phraseology, though circumstances sometimes re- 
quire courts to give it a broader meaning, would have been understood 
by anybody with respectable legal training as referring, prima facie, 
exclusively to land. Most certainly Dane, 118 a thoroughly competent 
lawyer and already embarked on lifetime studies of American statu- 
tory law that soon led to his recognition as an expert in statutory draft- 
ing, intended the narrow meaning. (4) Again, even if construed to 
cover all "possessions," with the idea of bringing slaves within that 
description, the Ordinance provision would still be much further re- 
moved than Virginia's condition from carrying an implication of a 
general perpetuation of slavery. A guaranty to these inhabitants that 
there should be no change in the laws and customs that had regulated 
sales and bequests of slaves, would be a guaranty neither to one man 
nor all men that there should continue to be slaves for sale or bequest 
But, anyway, (5) there is no justification for such a broadened con- 
struction. And, (6) on the contrary there are reasons to believe that 
giving the passage in question the broader construction would contra- 

il Carter, Territorial Papers, 2: 40. 

118 See Dictionary of American Biography, s.v. "Dane, Nathan." But 
this rule as to conveyances was not what Dane, personally, had desired for 
the French settlements; he wished immediately — beginning Sept. 1. 1787 — 
to force them to use American recorded deeds of bargain and sale; see his 
proposal in report of May 7, 1787 on commissioner government for those 
communities — Jour. Cont. Cong. 32: 268. Mr. Burnett is mistaken in sup- 
posing this report to be the source ("the chief animating idea") of the 
Ordinance provision — The Continental Congress. 686; they are utterly op- 
posed — see Philbrick, Laws of Indiana Territory (I.H.C. 21), Ixv, clxvii. 
ccxvii-ccxviii and n. 4; also report by Governor St. Clair — Carter, Territorial 
Papers. 2: 329. Even in his draft of the Ordinance for first reading on July 
11 Dane abandoned his own preference. Reports cited post ccxcviii-ccc and 
n. 156 of Sec. IV show that an attempt was contemplated to differentiate 
judicial trials of civil cases not involving land, ditto involving land, and 
crimes; French participation in all was desired; they could not have under- 
stood our law of land; this probably necessitated the clause that appears in 
the Ordinance, preserving traditional modes of conveyance. See ante n. 14. 



diet the interpretation given in Congress to Virginia's condition. The 
reasons seem rather strong, too. One is this : — there is no evidence 
whatsoever that in the process of drafting the plan that became the 
Ordinance of 1787 it occurred to anybody — either while James Monroe 
headed the committee or thereafter — that Virginia's condition rela- 
tive to inhabitants of the Illinois Country had anything to do with 
their slaves. 110 And the other is this : — that in considering at the same 
time as the Ordinance a form of commission government for those in- 
habitants, as perhaps better suited to their needs, there was again a 
complete absence of any reference to slave property. 120 Monroe was 
also prominent in these latter proceedings. Lands and land titles of 
the Illinois Country were much on the minds of members of Congress ; 
slaves, seemingly, not at all. 

The next provision in the Ordinance of which notice must be taken 
is the sixth compact article, by which slavery was supposedly pro- 
hibited within the Territory. Before quoting that, however, it will be 
helpful to refer briefly to three earlier proposals relative to slavery 
in the federal territory. None of these proposals had been agreed to 
by Congress. The first was that in Jefferson's draft of his governmental 
plan of 1784. It declared that after 1800 there should be "neither 
slavery nor involuntary servitude . . . otherwise than in punishment 
of crimes, whereof the party shall have been duly convicted to have 
been personally guilty ' ' in the territory to which his bill related ; and 
that was "the territory ceded or to be ceded by Individual States to 
the United States" — not merely the Old Northwest, but the Southwest 
which North Carolina and Georgia soon ceded. 121 The second was a 

us Monroe referred to the Illinois Country in his first report as chair- 
man in excluding from the legislative jurisdiction of the territorial legisla- 
ture Confederation lands; that is, by including lands already sold — among 
others, those "already vested in . . . the inhabitants of Kaskaskies, St. Vin- 
cents, and the Neighbouring villages . . . which rights have been secured 
to them by the Act of Cession" from Virginia — Jour. Cont. Gong. 30: 254. 
This was omitted in the second report — ibid. 405; and in the next report, 
by Judge Johnson, the simpler provision was adopted that no act of the 
Assembly should "affect any lands the property of the United States" — ibid. 
31: 672. There was no reference to the Illinois Country thereafter until 
Dane introduced into his first draft in an abbreviated form the clause quoted 
in the text, which was then corrected to conform exactly in description of 
parties, but not corrected at all to conform in description of that which was 
confirmed, to the verbiage of Virginia's deed — ibid. 32: 281, 315, 335. 

120 See reports in ibid. 28: 67-68, 155-57, 330-33, 461-62; also (committee: 
Madison, Clark, Dane; report written by Dane), 32: 266. 

121 Draft of March 1, 1784— Jour. Cont. Cong. 26: 119, 118; debate— 
ibid. 247. 



motion made in 1785 by Rufus King that a proposition — substantially 
the same as Jefferson's except that postponement until 1800 was not 
included — be referred to a committee. It was so voted, but the propo- 
sition came back from committee with the postponement until 1800 
restored and with an addition providing- that "upon the escape" into 
any federal territory of ' ' any person . . . from whom labor or service ' ' 
was lawfully claimed in one of the original states, such person might 
be "lawfully reclaimed." 122 Nothing more was done with this. After 
the preceding proposals came the actual provision of the Ordinance of 
1787. It differed from its three predecessors in relating to northern 
territory only ; that aside, it was like King 's original motion in not in- 
cluding any postponement, and like his amended motion in including 
a fugitive-slave provision. All three declarations were intended to be 
of compact character. 123 

122 iMd. 28: 164-65, 239; Burnett, Letters, 8: 622 n. 5. This proposal of 
King was, strictly, one for commitment only, not for legislation. 

123 The differences are significant in indicating how, in the opinion of 
the Congress, interstate compacts could he effected. 

(1) Jefferson's draft of March 1. 1784 read: "That the preceding articles 
shall be formed into a charter of compact, shall be duly executed by the 
President of the U. S. in Congress assembled under his hand and the seal 
of the United States, shall be promulgated and shall stand as fundamental 
constitutions between the thirteen original States and those" — that is, the 
territories; ante clxxii-iii — "now newly described, unalterable but by the joint 
consent of the U. S. in Congress assembled and of the particular State within 
which such alteration is proposed to be made" — Jour. Cont. Cong. 26: 120; 
italics added. 

Comments — (a) Since the word "articles" is not before used it is not 
certain whether by that he meant the whole instrument; probably only five 
numbered "principles" of great importance — post n. 370 of Sec. IV. (b) 
How were they to "be formed" into compacts? By the ceremony described? 
Or was that to follow their establishment as compacts? They could not be 
made such by mere ceremonial execution and promulgation — particular states 
might not have been represented in Congress, as two were not when the 
Ordinance was adopted, or might have voted in the negative as one did, or 
might not have voted because their delegates were divided in opinion, 
(c) At all events, how did Jefferson think the territories ("new States") 
were to become parties? (d) How was the consent of a "particular state" 
to an alteration to be given? and why should more be required as to that 
state for validation of a change than with respect to the original creation 
of a compact? (e) Nota bene that if these provisions had been made com- 
pacts they would have included a provision, part of the compacts, that for 
the purpose of consenting to alterations Congress should be an agent for all 
the states except one thereby particularly affected. Congress constantly 
acted on this theory after adoption of the new Constitution — seemingly on 
sound principles, though unavowed, ante cxcvii-ix; under the Articles of Con- 
federation such action (as Jefferson realized) would not have been adequate, 
hence his proposal to make the easier procedure available. 

(2) The ordinance in final form made no substantial alteration in the 
above— April 23, 1784, Jour. Cont. Cong. 26: 278. 



The form of the compact article in the Ordinance of 1787 was 
seemingly due entirely to Nathan Dane's judgment of what was likely 
to pass Congress. 124 It read : 

There shall be neither Slavery nor involuntary Servitude in the 
said territory 125 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 

(3) Rufus King's motion was, "that this regulation shall be an article 
of compact, and remain a fundamental principle of the Constitutions between 
the 13 Original States, and each of the States" — i.e. territories — "described," 
etc. — ibid. 28: 164; italics added. 

Comments — King must have pondered some of the questions asked above. 
No substantial change was made when the committee reported the proposi- 
tion back — ibid. 239. It is clear, then, that they thought compacts by thirteen 
states could be made by the votes of the delegates who happened to constitute 
a majority at the time. Nothing was said of alterations. 

There is one remarkable thing about King's motion as amended. It 
came back with these words following those above quoted: "described in the 
said Resolve of Congress of the 23d day of April 1784, any implication or 
construction of the said Resolve to the contrary notwithstanding." The 
writer believes that Jefferson's ordinance was being construed — query (b) 
above — as requiring, to begin with, an actual interstate agreement (which, 
as the fate of his draft showed, was hardly to be expected as regarded 
slavery); and hence the two-fold repudiation of that idea in King's own 
motion — first by positive indication that Congress could itself give to the 
provisions of a statute a compact character, and secondly by construing 
Jefferson's ordinance (then actual law) in the same way. 

(4) Nathan Dane followed this example in the Ordinance of 1787, in 
which it was simply "Ordained and declared by the authority aforesaid" — 
namely, "by the United States in Congress Assembled" — that certain of its 
provisions "shall be considered as Articles of compact between the Original 
States and the People and States" — that is, here, those subsequently created 
for admission to the Confederation — "in the said territory, and forever re- 
main unalterable, unless by common consent." 

This theory was essentially that of King's motion. 

124 There is positively no evidence that anybody made any suggestions 
to him on the subject. It was unnecessary to do so; he was himself an anti- 
slavery man, a personal friend of Rufus King, had worked with him on com- 
mittees. The fate of the proposals of Jefferson and King, and his own legis- 
lative experience in Massachusetts and Congress, would certainly have taught 
him that merely personal desires were to be avoided in drafting legislation. 
That he had reflected upon the form of a desirable provision is made clear 
by the matters referred to in the next note. 

125 One of the notable improvements Dane made over earlier drafts was 
in the distinction made between "territory" and "states"; see ante clxxii-iv. 
In his letter of 1830 to Webster there is this passage on King's proposal: 
"He moved to exclude slavery only from the States described in . . . Jeffer- 
son's Resolve, and to be added to it" — the Confederation. "It was very 
doubtful whether the word States in that Resolve, included any more terri- 
tory than the individual States ceded;" — see Jour. Cont. Cong. 25: 558 and 
(Madison's Notes) 956 for clarification of his statement — "and whether the 
word States included preceding territorial condition. Some thought his 
motion meant only future exclusion, as did Mr. Jefferson's plan clearly; 



claimed in any one of the original States, such fugitive may be law- 
fully reclaimed and conveyed to the person claiming his or her labor 
or service as aforesaid. 126 

In form this was an outright prohibition of slavery. Dane declared 
that by the Ordinance "slavery [was] excluded from its date and for- 
ever from every part of this whole territory . . . northwest of the River 
Ohio." 127 On the other hand the enactment contained the provision 
respecting fugitive slaves, above quoted ; likewise the provision relating 
to "descent and conveyance of property" above discussed; the right 
to secure representative government was based on the attainment of a 
certain population of "free male inhabitants of full age," representa- 
tion was based on "free male inhabitants," and admission to the Con- 
federation was made dependent upon attaining a certain population 
of "free inhabitants." 128 

Mr. Dunn has said of all these provisions, considered together, 
that they "are so enigmatical that no man, to this day, can say with 
assurance what is provided" on the subject of slavery. 129 This pro- 
nouncement is unjustifiably extreme. The intent and proper legal 
effect of the Ordinance seem reasonably clear. Confusion respecting 
it arose in the Illinois Country because of certain circumstances, in- 
cluding regrettable actions by Governor St. Clair. It is not difficult 
to free the Ordinance of these extrinsic confusions. 

The reason for the presence of the references to "free" inhabi- 
tants will be obvious to anyone who will recall that the Ordinance as 
submitted to Congress on July 11 (as drafted by Dane) did not contain 
Article VI. It was approved that claj^ with the provisions in question. 

therefore, in forming the Ordinance of '87, all about States was excluded 
. . . and that Ordinance made, in a few plain words, to include 'the terri- 
tory of the United States north-west of the river Ohio' . . . and the sixth 
article excluded slavery for ever from 'the said territory' " — Massachusetts 
Historical Society Proceedings. 1867-1869: 478. 

126 Carter, Territorial Papers. 2: 49. 

12? Dane, Abridgment. 9 (app.) : 75; also in the passage quoted ante n. 120. 

128 Carter, Territorial Papers, 2: 44, 49. The provision respecting repre- 
sentative government read: "So soon as there shall be five thousand free 
male inhabitants of full age . . . they shall receive authority . . . to elect 
representatives ... to represent them . . ., provided that for every five 
hundred free male inhabitants there shall be one representative." Did this 
imply that suffrage was restricted to free males? Certainly — necessarily if 
there were to be no unfree males in the Territory. Did it contradict the 
suffrage qualifications elsewhere (p. 44) stated without mention of "free"? 
Not at all — it supplemented them. 

129 Indiana, 210. 



and if nothing more had been done the situation in the Territory might 
have been identical with that in states where slavery existed but slaves 
were excluded from suffrage and from the population-unit upon which 
legislative representation was based. But Dane, sensing from the 
attitude of delegates that Congress would favor a prohibition of slav- 
ery, introduced (after all other matters had been voted on) Article 
VI, which was likewise approved. Naturally, he did not first remove 
the word "free" from the other provisions earlier approved and ven- 
ture everything with the test on Article VI. The Ordinance then 
read that slavery was abolished, and — repetitiously — that only free 
men could vote and be represented in the legislature. Did these two 
provisions, read thoughtfully (and without gratuitous imputation of 
either wile or stupidity to the draftsman), imply that there could be 
in the Territory a class of unfree persons? Can it be reasonably said 
that any obscurity or inconsistency arose from the juxtaposition of 
the several provisions in cpiestion ? To both of these questions the 
writer would unhesitatingly give a negative answer. And that would 
seem to have been the attitude of antislavery men of that time. Dane 
was himself uncompromisingly opposed to slavery and was a trusted 
friend of Kufus King and other antislavery leaders. None of these 
friends has left any criticisms of him in this connection, nor did any 
express dissatisfaction with the Ordinance. The same is true of his 
enemies, if such there were. Manasseh Cutler was certainly not a per- 
sonal friend, and did (unjustifiably) criticize Dane's handling of 
Article VI ; all writers agree, too, that he saw those portions of the 
Ordinance which contained the references to "free" inhabitants, but 
he recorded no criticism of them. In view of the complete absence of 
indications that they gave any trouble then, and of the various reasons 
given above, it seems reasonable to conclude that Mr. Dunn and other 
historians have quite needlessly misread the Ordinance and miscon- 
ceived its proper legal construction. 

The French in the Illinois Country became confused on these mat- 
ters because speculators who hoped to buy their lands at low prices 
stimulated fears of immediate (and unrecompensed) emancipation of 
their slaves in order to induce them to migrate to Missouri, while at 
the same time their agent in New York sent back opinions (unofficial 
and irresponsible) that no emancipation was intended. They may 
even have been confused regarding the guaranty of their old customs 



of descent and conveyance. Governor St. Clair, who had served for 
years in Pennsylvania in minor judicial offices, quite properly under- 
stood that to refer to land only, 13 " and when he finally got to the Illi- 
nois Country in 1790 ended (unless for historians) misapprehensions 
respecting it. He seems also to have understood correctly the Ordi- 
nance 's intent as to slavery, though he took it upon himself to calm the 
Illinois Country with unjustifiable assurances that necessarily preju- 
diced any policy of enforcing the Ordinance's antislavery article. 

It has now been shown that a cession compact relative to the 
French of the Illinois Country did exist between Virginia and the 
Confederation, but that it was not a compact for the perpetuation of 
slavery or even relating to slavery. It has been shown that the pro- 
vision in the Ordinance relative to those inhabitants was likewise one 
not relating to slavery ; and also that it did not restate in form or 
substance the cession compact, but was wholly different, and cannot 
possibly be considered as made in performance of the compact. No is- 
sue as to violation of one by the other — were both properly construed — 
could ever have arisen. It never fell to the Supreme Court to con- 
sider these matters, but it is quite clear from the decisions of that 
Court above considered — with reference to provisions within the so- 
called compact articles which it held to be mere legislation — -that a 
fortiori it would have held this provision of the Ordinance, saving to 
the French inhabitants their customary law of descent and convey- 
ancing, to be mere legislation. 

The writer's opinions (confessedly somewhat bizarre among those 
generally prevailing) are: that Virginia's condition in her deed of 
cession was not intended to be a guaranty of continuing slavery ; that 
this was the understanding of Monroe and others in Congress; that 
Congress was free to abolish slavery in the Northwest ; that it had 
power to do so despite the cession compact between Virginia and the 
Confederation ; and also under the Constitution of the new Union as 

is« He referred to it in connection with land when he reported (Feb. 10, 
1791) to the Secretary of State on his proceedings in the Illinois Country in 
the spring of 1790 (March 5 to June 11). "The Laws and Customs which 
had prevailed among the ancient Settlers are to be continued so far as re- 
spects the Descent and Conveyance of real property" — Carter. Territorial 
Papers, 2: 329. See also post, before and after notecall 167. 

The writer believes that the vast majority of lawyers would share his 
amazement over Mr. Dunn's utter disregard of legal tradition in this matter — 
Indiana, 219-20. 



shown in the preceding section of this introduction ; 131 that the sixth 
compact article of the Ordinance was ample to accomplish the pur- 
pose if not weakened by the other provisions of that instrument above 
stated ; that there was no inconsistency, as a matter of logic or law, 
between such abolition and the fugitive-slave proviso ; that there was 
likewise no inconsistency whatever between the abolition of slavery and 
the guaranty to the French of the Illinois Country of their old law 
with reference to descent and conveyance — which (though Dane, un- 
fortunately, did not explicitly so state) was in perfectly clear language 
limited to land ; that there was no inconsistency between the slavery 
prohibition and the references to "free" inhabitants — which there- 
fore justified no misunderstanding of the Ordinance by anyone who 
would read with the care it merited ; and that therefore the govern- 
ment, showing some sense in inquiring into the understanding of 
Monroe and others regarding the matter, should have instructed its 
officers and proclaimed to the inhabitants that slavery was abolished, 
although the inhabitants would be allowed ample time (stated) to 
adjust their affairs ; and Congress should have passed supplementary 
legislation to provide for the enforcement of this policy. 132 

Although it seems impossible to blame Dane in the matter, one 
must regret that he did not, out of excessive caution, make impossible 
misconstructions of the Ordinance's phraseology, since these facilitated 
the nullification of its slavery prohibition. There is not the slightest 
reason to question that Dane intended to abolish slavery forthwith and 
completely in the Northwest and believed he had done so, 133 just as 
Jefferson had wished to do three years earlier. Nor would there be 
a trace of evidence that any of those who passed the Ordinance 
doubted its abolishment of slavery were it not for the assurances 
given Tardiveau a year and a half later by St. Clair and "other 
members" of the old Congress — who possibly had, like St. Clair, not 
voted on the Ordinance. 134 Nor is there, seemingly, evidence that when 

isi Ante cxlviii seq. 

13 - These conclusions are in general agreement with views briefly ex- 
pressed by the writer in 1930 — Laics of Indiana Territory (I.H.C. 21), xxxv 
and n. 4, ccxvii-ccxviii and n. 1. At that time, however, the evidence had 
not been systematically considered. 

133 Abridgment, 7: 442-50, 9 (app.): 75. 

134 post n. 148. President Hinsdale has some remarks seemingly intended 
to suggest that perhaps Congress did not know it was abolishing slavery- He 
starts with the proposition that "The long and fierce contest over the ex- 
tension of slavery, which did not begin until many years afterward, gave to 



Congress in 1789 re-enacted the Ordinance, in order that it might 
"continue to have full effect," 1 ' 15 efficacy of the slavery article was 
doubted. There could have been no southern tradition to the contrary, 
as the Missouri debates plainly showed. Chief Justice Taney, though 
denying legislative power in Congress to abolish slavery, conceded its 
abolition in the Northwest by agreement of the sovereign states, and 
admitted that the act was definitive. 136 

That in fact slavery was not abolished — that the territorial gov- 
ernment deliberately approved, and the national government per- 
mitted, its continuance — is amazing. ' ' We learn from actual politics, ' ' 
Professor Macy once wrote, "that a positive statute sometimes ex- 
presses an ideal, a hope, or an aspiration ; sometimes it is an advertising 
agency." 137 No doubt some historians follow Professor Channing in 
believing that the Ordinance was only a declaration of ideals ; 138 pre- 
sumably, then-, that Article VI was ineffective even as a legislative 
(and therefore mutuable) prohibition of slavery. Some have thought it 
was an abolition statute and an advertisement for free-soil immigrants. 
Justin Winsor thought its abolition feature was never advertised for 
fear of discouraging immigration. 13 " St. Clair merely ignored its plain 
wording; treated it as an enactment not intended to be literally en- 
forced ; and yet it was no sop to a minority, but the embodiment of 
manifestly dominant sentiment. 

To what extent the views that have been expressed by the 

that prohibition" — the Ordinance's — "an importance which no one dreamed 
of according to it at the time of its enactment" — Old Northwest, 346. Men 
like Jefferson, Pickering, King, and Grayson would not have agreed to that; 
and no more so, presumably, proslavery southerners — who had been suf- 
ficiently awake to danger to defeat the motions of 1784 and 1785. Hinsdale 
then adds: "The fact is, the article was not of the substance of the Ordinance. 
It was not even a part of the original draft"; — true, but it is also true that 
until put into that first draft of July 9 by Dane, the Ordinance contained 
none of what Hinsdale elsewhere called "the six bright jewels in the crown 
that the Northwest Territory was ever to wear" (ibid. 271). And then he 
concludes: "There is no reason to believe that Mr. [Richard Henry] Lee of 
Virginia, changed his views on the subject of slavery in the interval, but he 
voted against the prohibition of 1784, and for the prohibition of 1787" — ibid. 
346. But Hinsdale forgot that Jefferson's motion of 1784 covered the South- 

las Carter, Territorial Papers, 2: 203. According to William Henry Smith 
the bill was drawn by Governor St. Clair — St. Clair Papers. 2: 120. 

ise Ante lxxxvii-ix and cxix-xxii. 

i ;i 7 Jesse Macy, "The Relation of History to Politics," American Historical 
Association Report. 1893: 185-86. 

138 B. Channing, A History of the United States, 3 (1912): 547. 

139 post n. 143. 



writer respecting the true meaning of the instrument were accepted in 
government circles at the time of its enactment cannot be known. That 
they did not prevail in the executive branch, charged with enforcement 
of the law, is manifest. Some reasons for that are also manifest. 

In the first place, the meaning of the "descent and conveyance" 
guaranty was (or was made), as already said, confusing to persons 
ignorant of property law. Much more so was the fact that slaves held 
within the Territory by the "french and Canadian inhabitants & other 
settlers . . . citizens of Virginia" could be thought of (particularly 
by those who desired to find security in doing so) as unfree inhabitants 
whose presence in the Territory seemed to be implicity referred to in 
the Ordinance. To these slaves there were later added those of British 
owners in the northwestern portions of the Territory, whose titles 
were (as customarily stated) "guaranteed" by Jay's Treaty — but 
most certainly should have been held to be guaranteed temporarily 
and solely in the sense above explained. 140 (And this modification of 
the Ordinance's supposedly unalterable prohibition-of-slavery clause 
by a treaty illustrates the equality of treaties and congressional legis- 
lation already adverted to.) If one assumes that there was a legal 
basis for the indefinite existence within the Territory of these two 
classes of slaves, then there is only one way to reconcile the Ordi- 
nance 's antislavery article with the fact thus assumed ; and that is, 
to conclude that what the Ordinance actually prohibited was, merely, 
any further importation of slaves into the Territory. That assump- 

1-40 By Art. 2 the British were obligated to evacuate the posts in the 
Northwest by June 1, 1796, "The United States in the meantime, at their 
discretion, extending their settlements . . . except within the precincts or 
jurisdiction of any of the said posts. All settlers and traders, within the 
precincts or jurisdiction of the said posts shall continue to enjoy, unmo- 
lested, all their property of every kind, and shall be protected therein. They 
shall be at full liberty to remain there, or to remove with all or any part of 
their effects; and ... to sell their lands, houses, or effects, or to retain the 
property thereof, at their discretion; such of them as shall continue to 
reside . . . shall not be compelled to become citizens of the United States." 
And then, as to lands, the ultimate principle was made entirely clear in the 
specific provisions in Art. 9 respecting lands. It declared that British sub- 
jects who continued to hold (own) lands within the United States should 
"continue to hold them according to the nature and tenure of their respective 
estates and titles therein; and may grant, sell, or devise the same . . . 
as if they were natives." 

See Dunn, Indiana, 220, 252-53; W. W. Blume, ed., Transactions of the 
Supreme Court of the Territory of Michigan, 1805-1836 (6 vol. 1935-1940), 
1: 387-89, 395, 405, 415, 417. 



tion has generally been made. 141 The writer's opinion is that no legal 
basis existed for the continuance of the two classes of slaves in ques- 
tion. For (1) — as regards protection given to British owners of 
slaves within the jurisdiction of the northwestern posts, that was 
plainly limited to the period preceding evacuation by the British, and 
thereafter the rights of owners were to be those of American citizens 
merely — that being explicitly stated as to lands, and fairly impliable 
as to slaves on general principles and by parity of reasoning. And 
(2) — as regards slaves in the French settlements of the Illinois 
Country, no guaranty of any kind can be found. Consequently the 
writer rejects the limitation of the Ordinance's meaning that is arrived 
at by making the assumption in question. 

The Ohio Company may possibly have been to a greater or less 
degree responsible for what happened. It Mall be shown later that 
the story of participation by it or by Manasseh Cutler in the forma- 
tion of the Ordinance rests upon virtually no trace of evidence ; yet at 
least they should have been jubilant over its exclusion of slavery if they 
held any of the ideals — beyond that of cheap land — with which they 
are habitually credited. Writers have debated much the question who 
put the slavery article into the Ordinance. It was equally important 
to give it reality, once there. Characteristically enough, antislavery 
contemporaries seem to have given no thought to this, and historians 
have virtually ignored it. The enactment, being in the book, was 
supposed to be self-executing. These idealists of New England, 
whom, primarily, the slavery prohibition was designed to gratify, 142 
seemingly did nothing for it. According to Justin Winsor it was 
"apparent that the [prohibition] provision . . . was never proclaimed, 
for fear of the influence it might have to prevent emigration to the 
territory. There is indeed no evidence that the supposed fact of pro- 
hibition was ever used in any advertisement of the Ohio Company 
to advance settlement. ' ' 143 As no one did anvthing to combat misunder- 

"i Judge Cooley, for example, in his Michigan (1885, 5th ed. 1890) 
simply took facts as they were and included a third class of American slaves 
brought in from our states. He did not inquire whether any of these facts 
had legal justification in their beginning. 

i*2 "in the years 1784, '85, '86, and '87, the Eastern members in the Old 
Congress really thought they were preparing the North-Western Territory 
principally for New-England settlers, and to them the third and sixth articles 
of compact more especially had reference" — Dane to Webster, March 26, 
1830— Mass. Hist. Soc. Proceedings, 1867-1869: 480. 

i4a Westward Movement, 287. No light is thrown on this matter by 



standing, the battle — though as it turned out, not the cause — was lost. 
The understanding of those who first communicated news of it 
to the Illinois Country was that slavery would be extirpated; 144 and 
since the retention by its inhabitants of the lands granted to them by 
Congress required them to remain in the Territory, while the retention 
of their slaves would then, they believed, be impossible, large numbers 
— -whose fears were aggravated by land speculators who desired to 
buy them out — moved to the Spanish dominions across the Missis- 
sippi. 145 The first prayer of their agent in the East was merely for 
the repeal or modification of the article "so far as it operates as an 
Ex post facto law." 146 But later, consulting in New York the presi- 
dent (General St. Clair) and "several other members" of the Con- 
gress, he was assured that ' ' there would not be the least difficulty . . . 
the intention had been solely to prevent the future importation of 
slaves . . . ; that it was not meant to affect the rights of the ancient 
inhabitants." 147 St. Clair had not been in touch with the Ordinance 
in the last stages of its formation, 148 and was not one of the men who 
had been connected with the process of drafting it during the year and 

Mr. A. B. Hulbert's introduction to The Records of the Original Proceedings 
of the Ohio Company (1917); compare xcvii. Mr. Stone has also remarked 
that "in the pamphlets issued by the Ohio and Scioto Companies . . . [we 
do not] find this feature of the Ordinance dwelt upon as one that would en- 
courage emigration"- — F. D. Stone, "The Ordinance of 1787" (1889), Pa. Mag. 
of Hist, and Biog. 13: 309, 325. 

1*4 Major Hamtramck wrote on April 11, 1789 from Vincennes to General 
Harmar, "Will you . . . inform me if Congress have changed their resolution 
respecting the freedom of the negroes of this country; and if they are free 
from the day of the resolve, or if from the day it is published in a district"- — 
quoted by A. C. Boggess, The Settlement of Illinois. 1118-1830 (1908), 64. 

145 philbrick, Laws of Indiana Territory (I.H.C. 21), lxxv n. 2; Major 
Hamtramck to General Harmar, Feb. 28, 1789 — C. W. Alvord, Kaskaskia 
Records, 1778-1790 (I.H.C. 5), 502; memorial of B. Tardiveau to Congress, 
July 8, 1788— ibid. 485. 

I" B. Tardiveau to Congress, Sept. 17, 1788 — ibid. 491, 493. 

147 He received these assurances, probably, in Dec. 1788. B. Tardiveau 
to A. St. Clair, June 30, 1789— W. H. Smith, .St. Clair Papers, 2: 118; Major 
J. Hamtramck to General Josiah Harmar, Aug. 14, 1789 — Alvord, Kaskaskia 
Records (I.H.C. 5), 508. 

I 4 * The last debate on it, before Dane introduced on July 11 his draft 
for first reading, was on May 10 — Jour. Cont. Cong. 32: 281 n. 1. He is not 
recorded in voting between May 11 and July 17 — ibid. 33: index s.v. "St. 
Clair — votes." Dr. Cutler had a letter to him — W. P. Cutler, Manasseh 
Cutler, 2: 229 — and arrived in New York on July 5, but did not pay his re- 
spects until July 18 — ibid. 292; St. Clair, therefore, was presumably absent 
during all the time when the Ordinance was remade and adopted. One may 
hazard the guess that the other members of Congress seen by Tardiveau 
were southerners (very likely friends of St. Clair — ibid. 298). 



more preceding. It is doubtful whether St. Clair himself ever con- 
sulted any of those men, or asked any first-class lawyer to construe the 
enactment. When he finally got out to the Illinois Country in 1790 
he took it upon himself to give the French population an interpreta- 
tion of the enactment — still, so far as appears, without having gath- 
ered opinions from others, and in particular without having secured 
an official opinion from the Attorney General. That he should not have 
consulted the legal officer of the government he represented is nothing 
less than amazing. 

I have thought proper [he wrote] to explain the Article respect- 
ing slaves as a prohibition to any future introduction of them, but not 
to extend to the liberation of those the People were already possessed of, 
and acquired under the Sanction of the laws they were subject, at the 
same time I have given them to understand that Steps would proba- 
bly be taken for the gradual Abolition of Slavery, with which they 
seem perfectly satisfied. 140 

These acts, although most extraordinary, were less so than was the 
scanty sense of proportion displayed by St. Clair in reporting them. 
He informed President Washington of his action only in a brief post- 
script to a long letter, and later devoted only one sentence to it in a 
fifteen-page official report to the Secretary of State on his acts in the 
Illinois Country. It seems extraordinary that Washington, in turn, 
secured no official interpretation of a law which it was his duty to 
execute. St. Clair's opinions were repeated three years later in a 
letter to a prominent proslavery resident of Indiana : 

I am more and more confirmed in the opinion. . . . That the decla- 
ration was no more than the declaration of a principle which was to 
govern the legislature in all acts respecting that matter, and the courts 
of justice in their decisions upon cases arising after the date of the 
Ordinance . . . but could have no retroactive operation whatever ; and 
the grounds upon which that opinion is founded are — that, in the first 
place, retroactive laws being generally unjust in their nature have 
ever been discountenanced in the United States, and in most of them 
are positively forbidden; and [in the second placet] that slaves being 
a species of property countenanced in . . . that part of the Territory 
which you inhabit, by the ancient laws, . . . Congress would not divest 

i+o St. Clair to President Washington, May 1, 1790 — Carter, Territorial 
Papers. 2: 248. William Henry Smith wrote of this that St. Clair "con- 
firmed the interpretation put upon the compact" — W. H. Smith, Sf. Clair 
Papers. 2: 119 n. 1. Interpretation by whom? Seemingly his own inter- 
pretation given earlier to Tardiveau — ante n. 147. 



any person of that property without making him a compensation, 
though they doubtless had a right to determine that property of that 
kind afterwards acquired should not be protected in future, and that 
slaves imported into the Territory after that declaration might reclaim 
their freedom. And this I take to be the true meaning and import 
of the clause of the Ordinance, and when I was in the Illinois country 
I gave the people there my sentiments on this subject in the same 
manner, which made them easy. . . . 

This I believe to be the true construction of the Ordinance, but I 
will endeavor to obtain the opinion of the judges upon the point, and 
transmit it for the satisfaction of the people. In the meantime, it will 
not be improper that they should be made acquainted with mine. ir '° 

Seemingly it was improper ; for after all he was charged merely with 
executing the laws, and not primarily with declaring what they 
were. Whether the judges ever gave him an opinion does not ap- 
pear. A strong suspicion may be hazarded that if the matter was dis- 
cussed the Governor was strongly opposed by two of the three members 
of the General Court. 151 

The nature of the slavery article in the Ordinance, as being or not 
being a compact of permanent character, was of course not involved in 
St. Clair's actions. He was merely construing the provision. In examin- 
ing the acts of Congress in which the slavery article was involved — or 
the judicial opinions dealing with those acts — one again is faced with 
the problem of compact terminology. Ohio's enabling act required her 
constitution to be "not repugnant to" the Ordinance. 152 Its prohibition 
of slavery, it will be remembered, was subject to a proviso for the sur- 
render of slaves that entered it as fugitives from the ' ' original states. ' ' 
The Ohio constitution, which Congress approved, 153 adopted the prohi- 
bition but omitted the proviso. 154 This was manifestly "a departure 
from" the words of the Ordinance, and as a matter of form constituted 

iso Letter of Oct. 11, 1793 to Luke Decker— ibid. 2: 318. 

i5i As to Judge Turner see Philbrick, Lqids of Indiana Territory (I.H.C. 
21), cxli-cxliii. As regards Judge Putnam, however, one must be content with 
a mere suspicion. In Rowena Buell, The Memoirs of Rufus Putnam and 
Certain Official Papers and Correspondence (1903), there is no word on 
slavery between 1787 and 1792 (pp. 102-26), and no letters of 1786-1789 are 
printed. On Judge Symmes see C. H. Winfield, "Life and Services of John 
Cleves Symmes," New Jersey Historical Society Proceedings, 2d ser. 5: 22-43. 
No nonmaterialistic interests in Symmes seem to be noted in B. W. Bond, Jr., 
ed., The Correspondence of John Cleves Symmes (1926). 

152 Act of April 30, 1802, sec. 5— U. S. Stat, at Large, 2: 173. 

133 Act of Feb. 19, 1803 — U. S. Stat, at Large. 2: 201. 

is* B. P. Poore, Federal and State Constitutions. Colonial Charters, and 
Other Organic Laws of the U. S. (2 vol. 1877), 2: 1461 (art. 8, sec. 2). 



repugnance to it. However, this difficulty — assuming that Congress 
(old or new) ever had power to give permanently binding force to the 
Ordinance's provisions — could be evaded by saying (as justices of 
the Supreme Court of the United States did say) 1 "' 3 that the people of 
the Territory manifested by the constitution they adopted, and "the 
States" manifested by the vote of their representatives in Congress in 
"accepting" that constitution, the "common consent" which sufficed 
for the cancellation of any compact — that is, totally or partially, and 
so for the cancellation of the proviso attached to the antislavery 

Such an explanation, whether specious or not, was wholly unneces- 
sary. The fugitive-slave provision, had it been retained in the state 
constitution, could not have existed, legally speaking, for an instant 
after Ohio attained statehood, since in her constitution it would have 
been an idle repetition of the fugitive-slave provision of the federal 
Constitution. An assumption that that fact was realized both in 
Congress and in the state convention that framed Ohio's constitution 
is the only explanation of the proviso's omission that is today legally 
acceptable. Consequently, the judges did not need to show that the 
compact was duly executed as it prescribed. It is, however, perhaps 
fair to assume that the reasoning of the time was then more accordant 
with the judicial suggestions just quoted. The case is referred to 
merely to illustrate the hang-over of the compact superstition. 

Return now to the question whether the above-suggested revoca- 
tion of a postulated compact, by common consent, was specious. It is 
perfectly clear that such reasoning was not technically accurate, for it 
was the "original states" that were named as parties to the compact, 
and all or some of them might not have voted, or might have voted in 
the negative, on the acceptance of Ohio 's constitution. Assuming, how- 
ever, that the phrase ' ' original states ' ' in the compact should be taken 
to mean "the states then members of the Union" — and remembering 
that since 1789 Congress exercises the national sovereignty within 
its delegated powers, and therefore with respect to the admission of 
states — the explanation becomes acceptable in a mechanical sense. 
Despite compact words and compact theory Congress always, actually, 

iri5 For example, Justice McLean in Spooner v. McConnell (183S), 1 Mc- 
Lean 337, at 343, and Justice Catron in Strader v. Graham (1850), 51 U.S. 
82, 98. 



in altering any provisions of the Ordinance, acted in this way, vot- 
ing merely by a majority in each house. 

The only way in which the nature of the supposed compact articles 
could be tested was by a complaint against their alleged violation — as 
in the Permoli and Pollard cases above discussed. No such test of the 
slavery provisions of the Ordinance was ever made. In the writer's 
opinion the officials of the Territory failed to perform their duties 
under those provisions, and it could have been determined, in proceed- 
ings to compel them to do so, whether the people of the territory or 
one of the original states was in truth a party to a compact. If not 
(and of course it would have been so held, as in the cases just re- 
ferred to), only legislation by Congress being involved, the way would 
have been equally open to test Governor St. Clair's performance of 
his duties thereunder. 1 "' 6 Again, it seems that the antislavery people 
were apathetic. In the absence of a legal test and check Congress 
could do anything that it desired and seem to be acting under its 
ordinary constitutional powers. 1 "' 7 

The result was the attempt to make Indiana and Illinois slave 

iri ° Malfeasance of Judge Turner of the General Court of Kaskaskia in 
the spring of 1795 was examined, following remission of a popular petition 
to Congress. The House of Representatives called for a report by the Attor- 
ney General; the President instructed the Secretary of State to take steps 
for trial of Judge Turner before the General Court of the Territory. The 
statements in W. H. Smith, St. Clair Payers, 1: 195-96, are somewhat dif- 

ir,7 when the people of the Territory (a) were willing to waive a com- 
pact, as they were in the case of the fugitive-slave provision (though a 
waiver when becoming a state was actually a waiver of nothing), they were 
also willing to ignore the original states in accepting a mere majority vote 
of Congress. Thus, in such cases there would be involved no action even in 
appearance (and, in legal truth, contrary to the initial assumption, no 
action in fact) on a compact. 

Assume, on the other hand, that the desires of these two parties con- 
flicted. Had this latent conflict arisen (b) when transition from the status 
of a territory to statehood was contemplated, the will of either party oppos- 
ing change in a "compact" could have prevailed. Congress, if opposing 
change, would have needed only to refuse statehood; and the people, if op- 
posing change (as they would have opposed alteration of the prohibition of 
slavery) would have needed only to renounce statehood. Here again, in the 
absence of a legal test of the compact, everything would appear to be covered 
by the discretion lodged in Congress by the Constitution to admit or not 
admit a state. Finally, had latent conflict existed (c) between the two 
parties over the enforcement or the repeal of a supposed compact during 
continuance of the territorial status (as happened in the case of the slavery 
article), everything done by Congress would appear to be done under its 
virtually unlimited constitutional power to regulate territorial affairs. 



states. 1 "' 8 The slavery question was ultimately settled in the Old 
Northwest in accord with the Ordinance's provision, but it was not the 
Ordinance — whatever the intent of its framers, whatever its true legal 
character — that made the Northwest free soil. It was the vast pre- 
dominance of northerners among immigrants into the Territory in the 
generation after enactment of the Ordinance that made certain the 
exclusion of slavery. No matter whether that instrument 's antislavery 
provision was or was not advertised to stimulate northern immigration, 
there can be little doubt that the provision was well known and its 
power exaggerated, and that, as one of Ohio's early representatives in 
Congress said, it served as a cloud by day and a pillar of fire by night 
to the northern emigrants who speedily made Ohio a free state, and 
to those who by virtue of prevailing local sentiment similarly made 
free soil the rest of the Old Northwest. 1 "'" For that reason it is im- 
possible to accept Justin "VVinsor's view that "the ordinance can 
hardly be said to have been instrumental in keeping human bondage 
out of the northwest in later years." Nor can the writer accept his 
other opinions that the provisions of the law "were operative just so 
far as the public interests demanded, and no farther" and that "the 
ordinance simply shared this condition with all law r s in communities 
which are self-respecting and free." 160 There was no "self-respecting 
and free" population of Americans in 1787 northwest of the Ohio to 
whom prohibition dictated by a distant government could have given 
offense. The French would doubtless have been compensated had the 
Ordinance been construed as presently abolishing, rather than as mere- 
ly forbidding the future introduction of slavery; and Governor St. 
Clair reported that they Avere satisfied with an assurance that eman- 
cipation would be gradual. 

The true meaning of the statute and likewise the intent of its 
framers — which are two quite distinct matters — were matters for 
proper governmental inquiry. The writer has desired, primarily, to 

i"'8 Dunn, Indiana, ch. 5 and 6; Philbrick, Laics of Indiana Territory 
(I.H.G. 21), index s.v. "slavery." On the slaves in the Illinois Country before 
and after 1787 see also Hinsdale, Old Northwest, 347-51. 

i">y John Reynolds' testimony is that of one who understood that the 
Ordinance was merely construed as forbidding the future introduction of 
slavery, and who was intimately acquainted with public sentiment in Illinois 
from 1800 onward, and he wrote: "This act . . . secured the States of Ohio, 
Indiana, and Illinois from slavery. I never had any doubt but slavery would 
now [1855] exist in Illinois if it had not been prevented by this famous Ordi- 
nance" — My Own Times (1879 ed.), 132 (ch. xliii). 

igo Westward Movement, 289, 290. 



show that various reasons habitually given in justification of the view 
that the statute was merely prospective in its prohibition of slavery 
rest either upon complete misreadings of plain and simple language 
or upon disputable interpretations. If the intendment of the statute 
was as the writer believes, then the inaction of Congress in failing 
to pass supplementary legislation, coupled with the presumptuous 
procedure of Governor St. Clair, constitute an extraordinary example 
of administration as inapt as its consequences were unfortunate. 

It would require much space to discuss here the action by the 
courts in cases involving the effects of the slavery article. 101 It may 
be said, however, that their record is far superior to that of the other 
departments of government, though marked by inconsistency. In 
particular the courts of several slaveholding states recognized the 
emancipatory effect of the Ordinance. 102 So, for example, Chief Jus- 
tice Gamble of the Supreme Court of Missouri — dissenting from that 
Court's decision that Drecl Scott became a slave upon his return to 
Missouri, regardless of prior residence in territory declared free by the 
Missouri Compromise — refused to recognize as other than definitive 
the free status which that Court had for many years held was ac- 
quired by the residence in free territory. 10 ' 1 

1H1 See Mr. Dunn's excellent chapter — Indiana, ch. 6; the decisions in 
the Michigan courts reported by Mr. Blume, ante n. 140; W. H. Smith, "The 
First Fugitive Slave Case of Record in Ohio," Amer. Hist. Assoc. Report. 
1893: 93-100; the discussion of the state decisions in the opinions of the 
various judges in Dred Scott v. Sandford (1857), 60 U.S. 393-633; and J. C. 
Hurd, The Law of Freedom and Bondage in the United States (2 vol. 1858- 
1862), 2: sees. 664-82. 

162 Whether or not with preference for its supposed compact character 
is not here in question. Benton quoted Sidney Breese as follows, from a 
speech by him in the United States Senate in 1848: "In all his observations 
and experience in cases of this sort," — involving the status of Negroes — "and 
they have not been inconsiderable, he has discovered that the courts of the 
slave States have been more liberal in their adjudications upon the ques- 
tion of slavery than the courts of some of the free States. The courts of one 
of them (Illinois) had uniformly decided against the right of freedom claimed 
by persons held in bondage under a modified form of servitude recognized 
by its old Constitution" — of 1818 — "In precisely similar cases, the courts of 
Kentucky and Missouri, to which such persons had been taken decided in 
favor of the right to freedom. And it is a remarkable fact that in all cases 
in these States, and he believed in other slave States, where there was any 
doubt about the right to hold the person in slavery, the decision has been 
invariably in favor of the right to freedom" — T. H. Benton, Dred Scott Case, 
45 n. 

163 "In this State it has been recognized from the beginning of the Gov- 
ernment . . . that a master who takes his slave to reside in a State or Terri- 
tory, where slavery is prohibited, thereby emancipates his slave. . . . These 



It has been seen above that before the middle of the last century 
it had become clear from decisions of the Supreme Court on other than 
the sixth "compact" of the Ordinance that Congress could not per- 
manently abolish slavery by making' the compacts in that enactment 
a constitution for both the Northwest Territory and the future states 
to be formed therein. In the present section of this introduction we 
have been concerned solely with emphasizing the differences between 
the true compacts that underlay the Ordinance and the pseuclo com- 
pacts contained therein. Admitting their insufficiency, as compacts, 
to control slavery permanently, the question remained whether Con- 
gress had constitutional power even to prohibit slavery by legislation 
in a territory. That question came before the Supreme Court in 1856 
in the case of Dred Scott v. Sandford. The decision of the Court on 
that point has been analyzed in the first section of this introduction, 
and the conclusion reached that the decision, denying such power to 
Congress, was unsound. 

To the foregoing discussion of the misinterpretations given to the 
Ordinance's guaranty to the French inhabitants of their old law and 
customs relative to descent and conveyance, it remains only to add 
that even in its proper and narrow sense 164 it was not observed as a 
guaranty in perpetuity. Under those customs land was conveyed 
by relatively informal papers executed before notaries, all wills were 
executed before notaries, and the property of the intestates was dis- 
tributed by notarial acts. 165 When Governor St. Clair was in the Illi- 
nois Country in 1790 he commissioned notaries in order to enable them 
to continue officiating in conveyances, 166 but it would seem that he did 
not realize the extent of their other functions. At any rate, in 1795. 
"having been informed that the Notaries public [took] upon them- 
selves to settle all testamentary affairs of the French Inhabitants and 
the Estates of such persons among them as happen to die intestate," 

decisions, which come down to the year 1837 seem to have so fully settled 
the question, that since that time there has been no case bringing it before 
the court for any reconsideration until the present" — dissenting opinion 
by Chief Justice Gamble in Scott, a man of color v. Emerson (1852), 15 Mo. 
576, at 590. See citations ante n. 161. 

is* See ante n. 130. 

io5 Compare Philbrick, Laws of Indiana Territory {I.H.C. 21), lxxi, clxvii. 

lee "The mode of conveyance was an Act before a Notary, and filed in his 
Office, of which an attested Copy was delivered to the Party — to fulfil that 
part of the Ordinance it was necessary that Notaries public should be ap- 
pointed" — report of Feb. 10, 1791 by St. Clair to Secretary of State, Carter, 
Territorial Papers, 2: 329. 



he ordered the probate judges in the two Illinois counties to make 
known that "everything relating to the Estates of deceased persons, 
whether real or personal, [was] within the province of the Judge of 
Probate and the Orphans' Court, and [that] any interference of the 
Notaries, [was] nugatory as to the Effect, and illegal as to the Act." 167 
"The ancient mode of Conveying real Estates and the manner in 
which such Estates descend to Heirs by the french Laws" were all, he 
said, that were reserved. This was of course a narrow restriction of 
the guaranty of "laws and customs . . . relative to the descent ... of 
property." He also construed the limitation — correctly, without 
question — as not in perpetuity, but either only until after laws should 
be adopted by the governor and judges "to regulate the Descent and 
Conveyance of real property, or until a Legislature by representation 
[should be] formed." 16 - The latter was not accomplished until seven- 
teen years later. No territorial law on descent or conveyances (in 
general) had yet been passed. But when they were passed they were 
put into effect without continued exception in favor of the French 

167 Oct. 7, 1795— Carter, Territorial Papers. 3: 443 
is* Ibid. Italics added. 




The primary purpose of the Ordinance was to provide "for the 
government of the territory of the United States Northwest of the 
river Ohio," as indicated by its title. For generations those words 
were read as equivalent to the words "government of the people now 
or hereafter occupying the lands northwest of the Ohio," since it was 
assumed that the Ordinance not only regulated the government of 
those people preceding their reorganization for admission to the Con- 
federation or the present Union but also controlled their action on 
vital matters thereafter. The nature of these supposedly permanent 
provisions of the enactment has been discussed in the last preceding 
section of this introduction, and it has been seen that their true nature 
was made clear a hundred years ago in decisions by the Supreme 
Court of the United States. It has also been seen, however, that not- 
withstanding those decisions many persons, including members of that 
Court, continued to talk about "compacts." It now remains to consider 
the provisions of the Ordinance that were always understood to be 
merely legislative, and it will be found incidentally not only that 
historians — in appraising its significance or character — still talk of its 
supposed "compacts" as actually such, but also that those who avoid 
references to the "compact" provisions as compacts are still domi- 
nated in their judgments of the Ordinance by old conceptions of its 
super-legislative character. The cause of this confusion is, seemingly, 
a disregard of the difference between a fictional social compact between 
kings and subjects and compacts supposedly included in an actual 
historical document. The two matters have manifestly nothing to 
do with each other, yet literally dozens of writers have treated the 
Ordinance as though, when assuming compacts to exist, no evidence 
of their existence need be sought — or even alleged to exist. At least 
one general historian still of national influence definitely cleared his 
pages of confusion respecting the permanence of the "compact" 
articles (and a few others of lesser note have done the same). Un- 
fortunately, however, in correcting one error he fell into the greater 
one of regarding the entire Ordinance as wholly lacking in legal basis, 



not seeing that the "compacts," though mere legislation by Congress, 
were expressions of congressional policy (until changed) on govern- 
mental matters of fundamental nature, and also valid restraints upon 
legislation by territorial assemblies. 1 

It is believed that the discussion which follows will show, (1) 
that the fundamental nature of compacts is still unclear to many 
historians, or is ignored by them, and that in consequence: (a) the 
compact suggestion in Jefferson's ordinance of 1784 is still considered 
a great (or the greatest) element in that enactment, although no com- 
pacts were made, nor any provision in it assumed to be a compact 
as stated; (b) the fame of the Ordinance of 1787 is still generally 
rested on the ideals of its supposed "compacts" — which, unlike the 
provisions of 1784, were' stated as being such, though in fact none was ; 
(c) misconceptions and disagreements exist as to which parts of these 
two enactments should be considered the "substance" or the "essen- 
tial" portions of each ; with the result that (d) there has been no agree- 
ment as to the relative statesmanship of the two enactments as plans for 
territorial government, nor (e) as to the extent or importance of the 
borrowings by the later from the earlier plan. 

Moreover, (2) the relation between the territorial system and the 
federal system had two aspects. A territory was wholly outside the 
federal system ; it became a member of that system only when it ceased 
to be a territory, to be admitted as a state. So far as the writer has 
discovered, only the second aspect has received attention by historians. 
Emphasis upon that justifies great praise of the Ordinance's govern- 
mental plan in comparison with other colonial systems of times ante- 
dating or contemporaneous with its adoption. Attention to the other 
aspect requires a very great attenuation of that praise when the Ordi- 
nance's provisions are tested by national ideals strongly predominant 
in 1787 and by developments in foreign colonial systems after 1787. 

Finally, historians, so far as the writer has been able to discover, 
(3) have not given adequate attention (a) to the relation of Jefferson's 
plan to Revolutionary principles and backwoods practices in state- 
making; nor on the other hand (b) to the essentially reactionary 
character of the Ordinance of 1787 if tested by those principles and 
practices (though here there are some exceptions) ; nor (c) to the fact 
that, so far as regarded territorial government, Jefferson's ordinance 

i E. Channing, A History of the United States, 3 (1912) : 548; post n. 200. 



was repealed in order to substitute for it a plan of literally antithetic 
character, as undemocratic and centralized as it was feasible to secure, 
although not so extreme as its framers desired; nor (d) to the reasons 
that motivated the abandonment of one plan and adoption of the other ; 
nor (e) to the differences of opinion in committee (for it was not 
merely the debility and procrastination of Congress) which delayed 
the preparation of the Ordinance in its final form; nor, finally, (f) to 
the question whether the reasons that motivated the abandonment of 
Jefferson 's plan were reasonable — and the reactionary character of the 
government established in 1787 therefore justifiable — under the cir- 
cumstances of that day. 

However unsatisfactorily these questions may be dealt with in the 
discussion that follows, they will not be ignored. 

No generalization on, or assumption regarding, the Ordinance's 
merits can be adequate unless it distinguishes and separately appraises 
its assumedly permanent and admittedly transitory provisions. Too 
often this has not been done. 2 The merits of the latter provisions have 
received little critical attention from others than the territorial citi- 
zens who suffered from their undemocratic spirit and administrative 
defects. The reason for this is evident. A knowledge of actual terri- 
torial government — of the acts, development, and interrelations of 
executive, legislative, and judicial departments — is requisite for a 
dependable appraisal of the Ordinance as a working plan of govern- 
ment. Many have been content merely to state its provisions as though 
no question of their merits could be involved. To refer to it, when 
only an incidental reference is called for, as "the beginning" of our 
territorial legislation is quite proper, but too often it has been lauded 
as such. 3 Merely to be the beginning does not imply even immediate 
adequacy, much less continuing adequacy or greatness. On the other 
hand, when judgments have been passed upon the Ordinance's gov- 
ernmental plan they have very rarely been systematic. Sometimes 

2 This is true even of Mr. D. G. McCarty's monograph, The Territorial 
Governors of the Old Northioest (1910), notwithstanding that Mr. Paxson 
has justifiably referred to it as "one of the few attempts to analyze American 
colonial policy" — F. L. Paxson, History of the American Frontier (1924), 72 
n. 2; and that it evidences excellent research. 

y See post nn. 180, 201 for comments on statements by George Elliott 



they have been in defense of some individual territorial officer with 
respect to some particular conflict of official authority in the nonrepre- 
sentative stage of government, without recognition of the fact that 
continual conflicts were due to the Ordinance's imperfect distribution 
of powers. Sometimes they have been in justification of some particu- 
lar instance of popular discontent, though this was a chronic malady 
of the territorial system and due to the Ordinance's illiberal spirit. 

The ordinances of 1784 and 1787, considered together, had a long 
legislative history. The first was wholly displaced, and in provisions 
for local government repudiated, by the latter. Even this, though it 
received prolonged consideration, was unsatisfactorily drafted, the 
long delay in its preparation being possibly due in part to the pre- 
occupation of Congress with other business, but mainly to lack of a 
quorum for business and to committee disagreements on vital provi- 
sions. 4 It is here essential to emphasize the relations of the two stat- 
utes to each other and the fundamental differences between them. 

* Mr. Burnett has remarked of the legislative proceedings re'ative to 
the organization of government for the frontier settlements that "congress 
appears to have long been strangely apathetic on the subject, at least to have 
exhibited an astonishing lack of activity" — E. C. Burnett, ed., Letters of 
Members of the Continental Congress (1921-1936), 8: x. The differences of 
opinion in the committee, coupled with the periods when there was no 
quorum in Congress and report and debate were therefore impracticable, 
seem probably sufficient to account for the delay. 

Rather full historical accounts of the later statute are those of J. A. 
Barrett, The Evolution of the Ordinance of 1787, with an Account of the 
Earlier Plans for the Government of the Nor'thivest Territory (1891), em- 
bodying much excellent research, the usefulness of which is somewhat im- 
paired by the fact that the primary sources cited by it have been displaced 
by the Library of Congress edition of the Journals of the Continental Con- 
gress ; and of J. M. Merriam, The Legislative History of the Ordinance of 
1787, American Antiquarian Society, Proceedings, new series, V (1888): 303. 
Far the most critical and best discussion of the Ordinance's origins and policy 
is in J. P. Dunn's Indiana: a Redemption from Slavery (1888), 177-260. 
Mr. Dunn made acknowledgments (ibid. 211 n. 1) to the article of W. F. 
Poole, "Dr. Cutler and the Ordinance of 1787" (1876) in North American 
Review. 122: 229. as "by far the most valuable study of the Ordinance" 
published before he wrote — as did President Hinsdale; the former adding, 
"with possibly the exception of Mr. Force's publication ... of Aug. 6, 1847," 
which was the first account written with knowledge of a considerable part 
of then unpublished and relatively inaccessible sources. In 1888 an im- 
portant source appeared: W. P. and J. P. Cutler, Life, Journals and Cor- 
respondence of Rev. Manasseh Cutler (2 vol.), which Dr. Poole had used in 
manuscript. This supplemented W. H. Smith, ed., The St. Clair Papers 
(2 vol. 1882). Peter Force's sketch, "The Ordinance of 1787, and Its History," 
is republished in the last two publications — in Cutler, 2: 407-27; and in St. 
Clair, 2: 603-18. B. A. Hinsdale, The Old Northioest (1888), is a very ex- 
cellent book. Dr. Poole, in an article of 1873 followed by that above cited of 



Jefferson's plan was remarkable (particularly in connection with 
the draft provision abolishing slavery, which was rejected) in applying 
to all the federal territory, north and south of the Ohio. It provided : 
(1) That the territory ceded b.v individual states to the Conferedation 
should 5 be organized into "distinct states." (2) That "the settlers" — 
without reference to their number, or other conditions — in any one 
of such "states" should, "either on their own petition or on the order 
of Congress," receive authority" for their free males of full age to 
establish, pending attainment of a population in such "state" of 
twenty thousand free inhabitants, a "temporary" government, organ- 
ized under the constitution and laws of any one of the original states 
which should be adopted for that purpose — "so that such laws never- 
theless shall be subject to alteration by their ordinary legislature ; 
and to erect, subject to a like alteration, counties, townships, or other 
divisions, for the election of members for their legislature." (3) 
That when the free inhabitants of any ' ' state ' ' should number twenty 
thousand, upon giving due proof thereof to Congress they should 
receive from it authority to establish a permanent constitution and 
government for themselves." (4) That such "new states" should be 
subject under both temporary and permanent governments 7 to the 
conditions that their constitutions be "republican"; that they forever 
remain "part of this confederacy of the United States, " 8 sharing 
responsibility for its debts; that they be subject "to the Articles of 

1876, had used quite uncritically the Cutler Journals. The appearance in 
1888 of four important works essential to a study of the Ordinance's origin 
and operation doubtless stimulated Dr. Poole to return to the subject in his 
presidential address of Dec. 1888 before the American Historical Association — 
see its Papers, 3: 287-94; his remarks contain various errors of fact, and as 
a whole constitute an extreme championship of Dr. Cutler as respects con- 
tributions to the writing of the Ordinance; his views on various crucial 
points are wholly without supporting evidence. 

'•> In every case where "should" is used in this summary of the statute 
the original was imperative — "shall." See the next note. 

11 Nevertheless, on April 21 Jefferson seconded a motion by Elbridge 
Gerry (which was lost) in which the words were altered to read, "authority 
may be given by Congress" — Jour. Cont. Cong. 26: 255. Jefferson may not, 
therefore, have meant to give his own original word "shall" its literal em- 
phasis. However, the motion was presumably (almost certainly) lost be- 
cause it would have substituted for "free males of full age" the words "free 
males of full age, being citizens of the United States." 

i The Congress refused to strike out the words "temporary and" from 
the clause: "Provided the temporary and permanent governments be estab- 
lished on these principles," etc. — April 20, 1784, Jour. Cont. Cong. 26: 249. 
See post ccxcv-vi. 

• s This is, geographically; post cccxiv. 



Confederation in all those cases in which the original states shall be so 
subject, 1 ' and to all the acts and ordinances of the United States in 
Congress assembled, conformable thereto"; 10 that they abstain from 
interference ' ' with the primary disposal of the soil ' ' by Congress ; 
that they impose no tax on lands owned by the United States ; and 
that until after admission of "any new State" to a vote by its dele- 

9 The wording of the original report had been, "That in their persons, 
property and territory they shall be subject" (etc. as quoted in the text) — 
Jour. Cont. Cong. 26: 119. In the draft as finally adopted, without pre- 
liminary action revealed in the Journals, the words "in their persons, prop- 
erty and territory" were omitted — ibid. 277, 279 n. 1. The reason for this 
omission was, no doubt, the fact that the Articles of Confederation in no way 
directly affected the inhabitants of the confederated states "in their persons, 
property and territory." However, as respects Jefferson's new "states" (ter- 
ritories) the power to control their inhabitants in their persons and property 
had just been introduced into the Articles by their implied amendment to 
permit establishment by Congress of territorial government (ante Ixxxiv 
seq.), and under that power the "compact" articles of the Ordinance were 
also valid legislation (subject to the question of the correctness or incorrect- 
ness of the second decision made in Dred Scott v. Sandford, which decision 
has been discussed ante cxxx seq.). The powers of the federal government 
under the new Constitution of 1788 did affect the inhabitants of the federated 
states in their persons and property. 

In 1784 the proper amendment of Jefferson's original provision would 
have been to omit the reference to the original states and retain the grant 
of power over the persons and property of the territorial inhabitants. It 
seems evident that the majority of Congress were unconscious of the amend- 
ment just made effective by the final act of Virginia's cession, and likewise 
evident that when the words in question were omitted no one foresaw such 
possible future amendments of the Articles as would strengthen the Union 
at the expense of the states. But the situation was very different in the 
summer of 1787, and consequently the corresponding provision of the Ordi- 
nance of 1787 reads: "subject to the Articles of Confederation, and to such 
alterations therein as shall be constitutionally made." 

io This was the final reading — Jour. Cont. Cong. 26: 277. The original 
report of March 1 (1784) had read, "subject to the government of the United 
States in Congress assembled, and to the Articles of Confederation in all 
those cases in which the original states shall be so subject" — ibid. 119. 
Although, as punctuated, the limitation to "cases in which the original States 
shall be so subject" applied solely to subjection of new "states" to the 
Articles, not to government of the territory by the united states (and quite 
correctly, since the original states were nowise subject to government by 
their fellows), it seems probable that removal of doubt on this point was 
the reason for striking out, on April 20, the words "to the government of 
the United States in Congress assembled" — ibid. 240. Jefferson voted with 
the majority. It does not appear just when the last sixteen words of the 
law in final form (as quoted in the text) were added — ibid. 277, 279 n. 1. 
On the other hand some members of Congress may then have doubted the 
power of the states united in Congress to set up over the territory, under 
the Articles, any "government" that affected individuals — just as Calhoun 
and Taney later doubted the existence of such power of the Congress under 
the Constitution (ante at notecall 135 of Sec. II). This possibility is latent 
in the final wording quoted in the text. 



gates in Congress, lands therein of nonresident private owners should 
not be taxed higher than lands of residents. 11 (5) That when the num- 
ber of free inhabitants "of any of the said States" should equal that 
of the then least populous of the original states, such "state" should 
be admitted "into the Congress" as an equal of the original states; 
and until such admission, "any of the said states, after the establish- 
ment of their temporary government, [should] have authority to keep 
a member in Congress, with a right of debating but not of voting." 
(6) Finally, by an amendment made at the last moment power was 
given to Congress to adopt "measures . . . necessary for the preserva- 
tion of peace and good order ' ' within the ' ' said new States ' ' until the 
establishment of a temporary government therein. 12 

It will be noted that this whole plan assumes a power in Congress 
to govern and impose conditions of a political nature upon inhabitants 
of the territories while such (and would have assumed a power to 
regulate personal status had Jefferson's slavery provision been 
passed) but did not purport to bind the inhabitants after admission 
to the Union. 

Certainly the statute was summary, and might be regarded as in- 
complete from a modern point of view. 13 It did not provide in detail 
how each of the two territorial governments, temporary and perma- 
nent, should be framed, but merely (as respected the former only) 
that the territory's adult free males should "meet together" to estab- 
lish it. But it was verj^ sensible for the members of Congress to leave 
these details (immediately under Jefferson's ordinance, after much 
longer delay under that of 1787) to their fellow citizens of the western 
territories. Englishmen and Americans had for centuries been doing 
such things instinctively, as perhaps every member of Congress knew. 14 

11 This was not in the original draft (of March 24) of Jefferson's ordi- 
nance but originated in a motion by Elbridge Gerry, seconded by Jefferson, 
of April 21, 1784 — Jour. Cont. Cong. 26: 257-59; and was retained in the final 
draft of April 23 — ibid. 279 n. 1. It was introduced into the Ordinance of 
1787 on July 11, two days before the latter's adoption in final form — ibid. 
32: 281 n. 1, 319. 

All of the seven preceding conditions of the law of 1784 except the first 
were incorporated into the fourth compact article of 1787. See post n. 370 
and text at ccxcv-vi. 

^ Ibid. 274-75, 278; cf. 259. The motion was offered by Elbridge Gerry. 

13 Compare the later legislation on subject as illustrated in the provisions 
regarding Wyoming (act of July 25, 1868, sees. 4-5, U. S. Stat, at Large. 
15: 178) and Oklahoma (act of May 2, 1890, sees. 4-5, ibid. 26: 81). 

14 C. Lobingier's The People's Law (1909) contains examples from the 



It is indispensable, also, to remember that the provision for the organi- 
zation of a temporary government, under the constitution and laws of 
an original state adopted for that purpose, made it quite unnecessary 
to deal in Jefferson's ordinance with details of governmental organi- 
zation. 13 In the Ordinance of 1787 these were very full. They in- 
cluded provisions for a governor and secretary, legislature, and court, 
and military establishment in the territory. They included also pro- 
visions relating to dower, decedents' estates, wills, conveyances of land, 
and the recording of these last. All this was merely unnecessary in 
Jefferson's ordinance. 

But another and primary characteristic of the later ordinance 
was impossible under Jefferson's plan, being diametrically opposed 
to the latter 's spirit and provisions. Those provisions gave the fullest 
possible play to self-government in local affairs. They were wholly 
consonant with the principles for which the Revolution had been 
fought. They conceded to prospective settlers of the border the same 
rights which the common people were exercising in the original states, 
and there 16 "the legislatures were in the hands of the radical revolu- 
tionaries, or extreme Whigs. ' ' 

On the other hand the Ordinance of 1787 established a govern- 
mental system unknown in any of the original states, irreconcilable 
with the principles of Anglo-American political doctrine, particu- 
larly repugnant to those of our Revolutionary era then just ending. 
This system was one of government in two stages, the first being one 
of astoundingly illiberal and tutelary character, in which there was no 
popular legislature and the governor was a federal appointee who 
headed the military establishment, appointed all officers of civil gov- 
ernment from townships upward, and with the federally appointed 
judges constituted a legislature. At the same time, with an insouci- 
ance characteristic of Anglo-American practice in political compro- 
mises, the Ordinance — "for extending the fundamental principles of 

colonial period (68-136), the Revolutionary era (137-87), etc. For an in- 
stance from Bermuda see T. M. Dill, "Colonial Development of the Common 
Law" (1924), in Lmv Quarterly Review, 40: 227. See post at notecall 276 seq. 

isA mere comparison of the length of different portions of the govern- 
mental provisions of the two ordinances, such as Nathan Dane made in de- 
fense of his originality, was not necessarily a satisfactory measure of that 
quality. In fact, however, Dane's plan was only in very small part taken 
from Jefferson's so that such a comparison worked no injustice. 

1,; J. F. Jameson, The American Revolution Considered as a Social Move- 
ment (1926), 55. 



Civil . . . liberty," and to "fix and establish those principles as the 
basis of all laws, constitutions and governments which forever here- 
after shall be formed in the said Territory" — proceeded to proclaim 
in supposedly unalterable "compact" articles various great principles 
of our system of civil liberty 17 other than those liberties which insure 
popular control of government, and which therefore safeguard all 
other liberties. That was a truth spread the length and breadth of 
the land in John Dickinson's Letters from a Farmer; 1 * so much a 
commonplace of the Revolutionary era that any inobservance of it 
must have been instantly and universally recognized as deliberate. 
But the Ordinance did disregard it. 

Writers of high merit have said that Jefferson's ordinance 3 " was 
not actually a governmental plan ; that it was in fact, and purported 
to be, of "constitutional" character. As used, this seemingly meant 
that Jefferson's plan made no provision for immediate government, 
that it was merely of prospective application. Mr. Dunn, a lawyer 
and a good historian, stated those views explicity : 

Mr. Jefferson's resolution or ordinance is not a plan for tempo- 
rary government at all, and was not so considered by Congress. It 
provided a mode by which the people of the West might adopt a tempo- 
rary government, but no provision was made for the intervening time 
until an amendment was adopted, by which Congress was authorized 
to take necessary action "for the preservation of peace and good order 
among the settlers." It was purely constitutional. It fixed the limits 
within which the local governments must act, but left the creation of 
those governments wholly to the future. 20 

Max Farrand echoed these affirmations. 21 Assuming momentarily 

i" Text in C. E. Carter, ed.. Territorial Papers of the United States 
(1934 ), 2: 45se<?. 

is "For who are a free people? not those over whom government is rea- 
sonably and equitably exercised but those who live under a government, so 
constitutionally checked and controlled, that proper provision is made against 
its being otherwise exercised" — John Dickinson, Letters from a Farmer. Let- 
ter VII. 

i» The final draft is in Jour. Cont. Cong. 26: 274-79. 

20 Dunn, Indiana. 187-88; italics added. Nathan Dane had written: "Mr. 
Jefferson's resolve, or plan (not ordinance), of April 23d, 1784, is ... a 
mere incipient plan, in no manner matured for practice. The Ordinance of 
July, 1787, ... is in itself a complete system, and finished for practice. 
... I am suprised Senators Benton and Hayne attempt to place Mr. Jef- 
ferson's fame, in any part, on his meagre, inadequate plan of '84" — letter of 
March 26, 1830 to Webster, Massachusetts Historical Societv Proceedings. 
1867-1869: at 476, 480. 

2i M. Farrand, The Legislation of Congress for the Government of the 



that the first statement of fact made by Mr. Dunn was correct 
(though it was not), what did he mean by "constitutional"? Since 
he was a lawyer he could hardly have meant that the plan was' such 
because its application was left wholly to the future ; were that so, 
unnumbered thousands of statutes, present^ passed but to become 
operative or effective at a future date, would be constitutional. Neither 
did he. mean that all the provisions of Jefferson's ordinance would 
control the states later created, after admission to the Union ; for 
Mr. Dunn elsewhere pointed out that even the supposed "compacts" 
of the Ordinance of 1787, which purported to do that (as Jefferson's 
did not 22 ), could have no such effect. 23 What he meant was that 
Jefferson's ordinance consisted exclusively of general congressional 
regulations for local organization of government which were un- 
amendable by territorial legislatures — that is, were binding on them. 
This is true. Nondawyers might readily misapprehend Mr. Dunn's 
ambiguous language. 

But let it not be imagined — because all of Jefferson's plan was 
beyond amendment by a territorial legislature, and some (not all that 
Mr. Dunn indicated) of the Ordinance of 1787 was so amendable — 

Organized Territories of the United States, 1189-1895 (1896), 8. In a later 
book he wrote that "the real reason why the ordinance remained a dead 
letter was that, while it fixed the limits within which local governments 
might act, it left the creation of those governments wholly to the future" — 
The Fathers of the Constitution (1921), 71. The explanation is wholly 
erroneous. Professor Paxson has also stated that "The scheme . . . pro- 
vided no machinery for organizing the States and no preliminary govern- 
ment before the population became adequate for statehood" — American 
Frontier, 63. Whatever meaning be here given to "States" and "statehood" 
both of these statements are inaccurate. 

22 It specifically provided "that both the temporary and permanent 
governments" iDhich preceded admission to the Union should be established 
on the principles stated ante following notecall 7. Jefferson's intended com- 
pacts were probably limited to them — post n. 53. 

23 "The theory that any law-making power can establish an unalterable 
rule, binding on its successors of equal power, has long since been exploded. 
That one could make a law binding on a superior power, such as the Ordi- 
nance would have been under this theory, is a fortiori impossible. It is well 
settled by the decisions that the Ordinance was abrogated in each state by 
the adoption of a constitution, and that thereafter it did not exist . . . 
unless reenacted by the state" — Indiana, 250. 

Mr. Dunn was here discussing the slavery "compact"; the "law-making 
power" is Congress. To spell out what he nowhere bothered to say: (a) 
Congress could not bind itself by the Ordinance not to amend or revoke it 
at will — it did amend it; (b) the future states of the Northwest were not 
bound; (c) of course the original states were not bound by a law of Congress 
— there were no compacts by them. 



that territorial legislative powers were less under the earlier ordinance. 
Its provisions were unamendable, but set up a local government of vir- 
tually immediate and almost unlimited powers of self-government . 
The only limitations set by it on territorial action were few, and 
dictated by the relations between the territory and the Confederation, 
and all these limitations (save one) were likewise imposed by the 
Ordinance of 1787. 24 Legislation under the latter was also subject 
to "the principles and [compact] Articles" of that instrument— to the 
latter, of course, very desirably so — and to an absolute power of veto 
in the governor. 

Returning now to Mr. Dunn's first statement of fact, — that 
Jefferson's ordinance made no provision for immediate territorial 
government — the truth is that its provision therefor was complete. It 
will be seen that the settlers on the western borders were quite ready, 
and entirely competent, to organize under its provisions.- 3 Of course, 
the actual initiation of territorial administration was dependent upon 
the appropriation of money, but this was equally true of the Ordinance 
of 1787. The difference was that in the case of the latter Congress 
did take the necessary supplementaiy action because the time was 
ripe; in the case of Jefferson's ordinance various conditions made such 
action impossible. 

The facts are patent on the record, and have been correctly 
stated by various writers of authority, including long ago Senator 
Benton and George Ticknor Curtis. 2 " Jefferson's report was ordered 
by Congress, framed, and approved as a "plan for the temporary gov- 
ernment of the Western territory." 27 It is true that until amended in 
debate before its passage, as stated b} ? Mr. Dunn, it made no provi- 
sion for immediate government of the settlers ; the initiation of such 

upost n. 370. 

26 Post cccxlix-1. 

-' ; Senator Benton was as extreme in his claims for Jefferson's ordinance 
as Dane was niggardly in his recognition of it — T. H. Benton, Historical 
and Legal Examination of . . . the Dred Scott Case (1857), 42. George 
Ticknor Curtis justly remarked that at first the ordinance even undertook 
to regulate individual rights by prohibiting slavery; but that prohibition 
being removed, the statute became "a mere provision for the political organi- 
zation of temporary and permanent governments of States," the regulation 
of those rights being left to the settlers themselves in adopting for their 
pre-admission government the constitution and laws of any one of the original 
States — Constitutional History of the United States (2 vol. 1S57-185S), 2: 

-• Jour. Cont. Cong. 26: 118, 246 seq., 275-79. 



government was made dependent on petition by them and approval 
by Congress, or an independent action by Congress. 28 It is also true 
that even with that amendment the report did not submit detailed 
provisions to be immediately approved by Congress for initiation of 
such government ; the amendment provided merely that, either on their 
own petition or by order of Congress, the settlers should receive au- 
thority to initiate government.-" With this provision included, the 
ordinance was clearly a plan for government of the territory in all 
stages of its settlement. The omission of detailed provisions for im- 
mediate government was in fact good sense ; there were also good 
reasons why none could then have been instituted and the time when 
such action would become practicable was uncertain. Nor was the 
ordinance any less than a complete and feasible administrative plan 
because one of its general principles made it impossible to impose any 
details of government beyond the first short stage ; since these would 
depend upon the settlers' choice of the state under whose laws they 
desired to live pending organization under their own constitutions. 

Jefferson 's ordinance was, then, a complete and workable plan for 
the government of a specific territory. It was precisely that— but at 
the same time it was, by implication, something more ; namely, an 
enunciation of general principles of government which were judged 
proper to control the administration of all federal territory, the plan 
being drawn to cover all that the Union then held. But its prin- 
ciples — not being made interstate compacts (as suggested in the words 
retained from Jefferson's draft in the final enactment) — were never- 
theless mere legislation, and "constitutional" only in the peculiar 
sense above explained. There is nothing to justify an assumption 
that anybody contemplated varying plans for different districts. Com- 
mon sense suggested that a plan suitable for one would be suitable for 
others; and (with the elimination of a prohibition of slavery deemed 
undesirable for the Southwest) Congress, by adopting the ordinance, 
expressed that view. 

Nor was there any difference in this respect between Jefferson's 
plan and that of 1787. Monroe's committee, in preparing the substi- 
tute plan that became the Ordinance of 1787, and Nathan Dane in 
giving this final form, did not refer to any other than the Northwest 

2s/6id. 274. 
29/&i(Z. 276. 



Territory, but no doubt it was considered proper for application to 
other territories. In fact, with the exception of its prohibition of 
slavery it was extended to the Southwest Territory and to some other 
slaveholding territories, and without that exception was extended to 
various free territories. 30 It is interesting that Jefferson believed that 
Congress agreed to his plan precisely because of the liberality with 
which he construed his instructions. 31 

The distinction made by Mr. Dunn between the two ordinances — 
that Jefferson's was "wholly" constitutional and the other "con- 
stitutional as to its articles of compact, and merely statutory as to the 
remainder" 32 — was seemingly thought to have significance as a criti- 
cism of the former. It certainly is of no significance in that respect, 
if it is in any. As regards what the framers of the two instruments 
intended, there was this difference: that in both cases they wanted 
compacts that would be of constitutional character in the sense that 
tfyey would bind states ; that in neither case were the provisions made 
compacts; that Jefferson almost certainly realized this, 33 and Dane 
too ; 34 but in the case of the later ordinance, since it declared some of 
its provisions to be compacts many persons believed them to be such. 
In reality there was in this respect no difference between the two stat- 
utes. Each was of purely statutory character, binding upon the terri- 
tory — or "constitutional" as respected it — so long as unmodified or 
unrepealed. The differences in length and form are of course unim- 
portant. The essential difference is the vastly greater measure of self- 
government allowed by Jefferson's plan. 

It has also been stated in various excellent books that Jefferson's 
ordinance never became law ; or in Nathan Dane 's words was not an 
ordinance. 35 This is an egregious and manifest error. The "plan" 

30 See ante n. 69 of Sec. III. Dr. Farrand, ante n. 21, pointed out that 
the Ordinance of 1787 was "evidently intended or at any rate eminently fitted" 
for application to other territories than that northwest of the Ohio — Legis- 
lation for the Territories, 16. 

31 He wrote to Madison on April 25, 1784: "they [the Congress] have 
agreed to it, because it extends not only to the territory ceded but to be ceded. 
and shews how and when they [new States] shall be taken into the union" — 
Writings (Ford ed.), 3: 470. The committee's liberal understanding of its 
duties seems to be reflected in David Howell's words, post n. 53. 

32 Indiana, 188. 

■sz Post, text at notecall 54 to 55, and those notes; also note 135. 

34 ibid. 

35 For example: F. A. Ogg, The Opening of the Mississippi (1904), 406; 
A. Nevins, The American States . . . 1775-1789 (1924), 596; N. Dane. 



was formally approved by Congress; its "repeal" was recommended 
by Monroe's committee in reporting their own new "plan" of tempo- 
rary government for the same territory, and was finally effected by the 
adoption of the new plan on July 13, 1787. 36 The second plan ac- 
quired in its late legislative stages the title "ordinance,"''' 7 which 
Jefferson's never did, but that is of no significance; both "plans" were 
bills until adopted, and when approved were ordained. Jefferson's 
was law, and was an ordinance for more than three years. 

In one sense, however, it is quite true that as Mr. Hicks has said 
Jefferson's ordinance "was purely preliminary and tentative." 38 It 
was not intended to be of that nature, but as events turned out it 
proved to be such. The original report was made on the same day that 
Virginia actually ceded to the Confederation her western lands. Thou- 
sands of unruly squatters were pouring rapidly beyond the old fron- 
tiers of settlement. From the old French settlements in Indiana and 
Illinois came clamorous demands for an effective government of law 
and order. Practical and prompt action by Congress was manifestly 
desirable. Jefferson's ordinance advanced Congress not at all toward 
that practical objective, for no territory was organized under its pro- 
visions ; the abortive attempt to organize the State of Franklin was 
the only action attempted under them. But the fact that it remained 
practically a dead letter was due predominantly to external conditions ; 
not to anything in the plan that made its immediate application 

The subject presented very great difficulties from the beginning. 80 
No territory could have been organized for a considerable time because 
of the confusion of ideas and the conflicting interests which impeded 
decisions in Congress. Many members of Congress, and leaders outside 
of it — nobody more than Washington — were opposed to settlement in 

General Abridgment and Digest of American Law with Occasional Notes and 
Comments (8 vol. 1823-1824; vol. 9, 1829, with app. 1830), 9 (app.): 74. 

sejour. Cont. Cong. 26: 279, 30: 255, 32: 343. 

st On May 9, 1787— ibid. 32: 274, retaining that title thereafter. Irving 
Brant states that the first action of Congress called an "ordinance" was of 
March 27, 1781 relating to the capture and condemnation of prizes — Life of 
James Madison, 2 (1948): 111; Jour. Cont. Cong. 19: 314. It is possible that 
system supposedly guided use of the word, but certainly no distinction could 
be made between the two governmental plans of 1784 and 1787. 

ss J. D. Hicks, The Federal Union (1937), 178. 

s 9 See letters of David Howell (member of the Jefferson committee), 
Feb. 1 and Feb. 21, 1784; of Jefferson to Madison, April 25, 1784; of W. Gray- 
son to Washington, May 8, 1785— Burnett, Letters, 7: 427, 451, 499; 8: 118. 



the manner in which it was actually proceeding; 40 that is, "in an ir- 
regular and loose manner." 41 They entertained the idea that par- 
ticular districts of the western country should and could be succes- 
sively settled and admitted as states. This was the plan of Congress 
throughout 1783, and it was a committee recommendation that govern- 
ment be speedily established "in such District thereof as shall be 
judged most convenient for immediate settlement and cultivation" 42 
which led to the appointment of Jefferson's committee to prepare a 

40 In the beginning the government was disposed to eject squatters from 
the Northwest Territory until settlement should be authorized; General 
Harmar expelled large numbers in the spring of 1785 — Smith, St. Clair 
Papers, 2: 3 seq. 20. But they were far too numerous to be so dealt with 
successfully. In 1783 there were, in Dr. Jameson's opinion, "probably twenty- 
five thousand" settlers west of the Alleghenies; in Kentucky alone, in 1785, 
an estimated 20,000 to 30,000 — The Revolution Considered as a Social Move- 
ment (1926), 68, 69. Professor Channing estimated the total cross-mountain 
population in 1790, north and south of the Ohio, at 110,000, certainly not 
exceeding 125,000 — History, 3: 528. Squatters had good reason to feel that 
despite their unauthorized settlement they would be well cared for; there 
had been much colonial legislation in favor of them as pre-emptioners. 

41 See Washington's letters of June 17, 1783 to the President of Congress, 
of Sept. 7, 1783 to James Duane, and of March 15, 1785 to Hugh Williamson 
in his Writings (Pitzpatrick ed.), under those dates. The greatest cause of de- 
lay was the difficulty of choosing between competing modes of sale; see, in 
addition to the above letters, Grayson to Washington, April 15, 1785, Burnett, 
Letters, 8: 95; Grayson to Pickering, April 27, 1785 in O. Pickering and C. W. 
Upham, Life of Timothy Pickering (4 vol. 1867-1873), 1: 511; R. King to 
Pickering, May 30, 1785, C. R. King, Life and Correspondence of Rufus King, 
7 (1894): 103; Madison to Washington, April 16, 1787, Burnett, Letters, 8: 
579; Madison to Pendleton, April 22, 1787, ibid. 587. And on the working in 
Kentucky of the system of "indiscriminate location" General Parsons, in a 
letter of Jan. 7, 1786, after being at the Falls of Ohio, wrote that there were 
frequently "survey upon survey, in many instances ... 8 or 9" — C. S. Hall, 
Life and Letters of Samuel Holden Parsons (1905), 480. See also N. S. 
Shaler, Kentucky: a Pioneer Commonwealth (3d ed. 1886), 49-52; L. Collins. 
History of Kentucky (rev. ed. 1877), 633, 813; R. S. Cotterill, History of 
Pioneer Kentucky (1917), 231-33. See also W. E. Peters, Ohio Lands and 
Their Subdivisions (1918), 18-25. 

42 On June 5, 1783 it was moved (by Mr. Bland, Alexander Hamilton 
seconding) that the Western Country be divided into various "districts," each 
of which, when its population should reach 20,000 shou'd "become and ever 
after be and constitute a separate. Independent free and Sovereign state, and 
be admitted into the union as such with all the privileges and immunities 
of those states which now compose the Union" — Jour. Cont. Cong. 24: 385. A 
committee reporting on Sept. 13 1783 "on the Virginia cession" (the antici- 
pated cession) offered a resolution that a committee be appointed to report 
"the most eligible part" of the territory "without the boundaries of the 
several states, and within the limits of the United States," "for one or more 
convenient and independent states" — ibid. 25: 558. Another committee, of 
which Mr. Duane was chairman, reporting a month later, submitted resolu- 
tions which are set out post, following notecall 97. 



governmental plan for such district. 4S No doubt such settlement would 
have lessened the danger of Indian incursions and given greater 
security against Great Britain, but the rapidity of settlement nullified 
all plans to control it. William Grayson expressed the opinion that 
only the importunities of public creditors, and general reluctance to 
undertake their payment by taxation, made possible any agreement 
within a short time upon settlement of the territory. 44 Any authorized 
migration into it must have waited upon the opening of land offices, 
and land sales were impossible until Indian titles should be cleared and 
provisions made for sales. It was necessary, then, to conclude treaties 
with the Indians, agree upon a district for a first new state, and pass 
a land law. It soon became evident that settlement could not be 
directed into and confined to particular districts successively. It was 
equally clear that, assuming varying densities of settlement in different 
regions, surveys could not be made of these selectively and indepen- 
dently, but must begin at the eastern edge of the territory and proceed 
systematically westward. This was the basic assumption of the plan 
(which established the fundamentals of our system of national survey) 
drafted by Jefferson as chairman of the committee charged with what 
he viewed as "the minuter circumstances of selling the ungranted 
lands." His first report was rejected b}' Congress, thus of itself ren- 
dering the governmental ordinance equally ineffective. It was passed 
in altered form in 1785. 45 It was high time for such action ; legitimate 

4 3 On April 9, 1783 a motion was adopted (or appointment of a committee 
to report "the measures proper to be taken with respect to the Western 
Country" — Jour. Cont. Cong. 25: 955, 957. On Dec. 18, 1783 a committee on 
regulation of Indian trade was renewed "and the matter, together with the 
plan for the temporary government of the western territory was referred" 
to Jefferson and others — ibid. 25: 693 n. 1. On Jan. 3, 1784 Jefferson re- 
ported on Indian treaties — ibid. 26: 5; and on March 1, 1784 he reported his 
governmental plan — ibid. 26: 118. 

±4 Letter cited ante n. 39. See Herbert B. Adams, "Maryland's Influence 
upon Land Cessions to the United States," in Johns Hopkins University 
Studies in Historical and Political Science, 3.(1885): no. 1; M. Egleston, 
"The Land System of New England," Johns Hopkins Studies in Hist, and 
Pol. Sci. 4 (1886): nos. xi-xii; H. L. Osgood, American Colonies in the Seven- 
teenth Century. 1 (1904): ch. 4; A. C. Ford, "Colonial Precedents of Our 
National Land System as It Existed in 1900," Wisconsin University Bulletin: 
History Series. 2 (1910) : no. 2. The views of Peletiah Webster (1781), which 
were spun of pure theory and utterly devoid of practical realization, are 
reprinted in A. B. Hulbert, Ohio in the Time of the Confederation (1918), 

43 See the law in Carter, Territorial Papers. 2: 12 with editorial notes. 
Jefferson's first draft of the land ordinance of May 20, 1785 provided for 
surveys only after purchase from the Indians and creation of states; the 



doubts existed whether the hour was not already too late for enforce- 
ment of any system of orderly sales in advance (or confirmation) of 
settlement. 40 

Two years passed, after the land ordinance was out of the way, 
before a governmental plan was available in the Ordinance of 1787. 
A stable government was thereby assured ; one that would maintain 
order and protect investments. However much the sale of federal 
lands might reduce the value of their own backhands, 47 and however 
much the admission of new western states might lessen their own 
political power, all the old states had come to realize that migration 
to the West was wholly beyond control, and that both land sales and 
new states were, all things considered, desirable. The East was 
satisfied with the plan for frontier government ; it had secured a quali- 
fied prohibition of slavery and the South had received a satisfactory 
quid pro quo. iS The completion of both the land and the governmen- 
tal ordinances, and particularly the compromises made in the first, 4 ' 1 

latter disappeared before the final revision — Jour. Cont. Cong. 27: 446 and 
Carter for final law. 

■46 Washington wrote to Richard Henry Lee: "A little longer and that 
country would have been settled maugre all that could have been done to 
prevent it; as it is I am not clear that the same respect will be paid noic 
to this Ordinance, which would have been at an earlier period, before men 
began to speculate in Lands No. West of the Ohio and to obtrude themselves 
thereon" — June 22, 1785, Burnett, Letters, 8: 111 n. 2. See also Washington 
to Grayson, Aug. 22, 17S5 and July 26, 1786 in his Writings (Fitzpatrick ed.) 
under those dates. On April 25, 1787 a committee of Congress, commenting 
on the slow progress of surveying, reported: "The loss of lands is seriously 
to be apprehended, unless early measures are passed for Vesting a better 
kind of people with rights there" — Jour. Cont. Cong. 32: 239. 

■*" Ownership of these had not prevented agreement on acquisition of a 
national domain to pay the Revolutionary debt and did not prevent agree- 
ment on the land ordinance. But its influence in retarding the latter was 
suspected — R. Putnam to Washington, April 5, 1784, Cutler, Manasseh Cutler. 
1: 136; reply of June 2 in Washington, Writings (Fitzpatrick ed.), 27: 411. The 
same suspicion entered later into the last stages in the preparation of the 
Ordinance of 1787— See Madison to Washington, April 16, 1787, Burnett, 
Letters, 8: 579. 

When the Ordinance had been passed the Massachusetts delegates wrote 
to Governor Hancock: "It has been a Question, with the Eastern Delegates 
especially, whether peopling those new regions with emigrants from the old 
States, may not, in point of view, be a disadvantage to them. But it has been 
found, that those new lands are very inviting to settlers, and that, if not 
regularly disposed of and governed by the union, they will in a very few 
years, probably, be . . . settled in an irregular manner, and perhaps at 
no less expence of Inhabitants to the old States"— letter of May 27, 1788— 
Burnett, Letters, 8: 740. It will be noted that there is here no reference to 
loss in sales of land. 

48 Ante n. 22 of Sec. III. 

49 The main compromise, after giving preference to township over in- 



meant that squatter settlement and individual speculation could be 
replaced by collective speculation and some control of settlement. "We 
have at last," wrote Edward Carrington, "made a brake into the 
Western Lands."™ But although there was this actual conjunction 
of land hunger and humanitarianism, it will be shown below that the 
adoption of the Ordinance of 1787 was not (as it has often been said 
to have been) dependent upon that conjunction. 

The above conditions of external fact, of themselves, had neces- 
sarily made a dead letter of Jefferson's plan of government. But 
there concurred in that effect other causes that were not external to 
it. Some sprang from positive provisions of the plan, and others 
were inherent in its general nature. 

One supposed defect of the latter character — that it provided 
no plan of actual government — would have been of the gravest im- 
portance if it had actually existed, but it has been seen that it did not. 

Another supposedly grave defect was attributed to it. Before 
stating this, emphasis should be given to the fact that the legal effec- 
tiveness of the ordinance is not here primarily in question, although 
incidentally involved. Under the writer's theory that the Articles 
had been impliedly amended, Congress had the power under them 
to establish governments in the Northwest ; and, that power not being- 
qualified, it could exclude slavery or declare fundamental political 
rights. But although the sovereign states could have done these 
things outside the Articles, as under the theory of Chief Justice Taney 
they did, they could have done them only by agreement (compact), 
and if done through Congress as their common agent the delegates 
of each (whose general powers, stated in the Articles, did not cover 
the situation) must have had special instructions from their respective 
states; and such, of course, had not been actually given. For this 
reason, already emphasized, his theory becomes unavailable. 51 

The next alleged defect of the ordinance, then, was that indicated 
by Mr. Dunn — that it did not even purport to be final action, even 

discriminate-location surveys, was to sell land in one tier by whole town- 
ships and in the next tier by sections, alternately. Washington commented 
on the views compromised: "Both sides are sure, and the event is appealed 
to, let time decide it. It is however to be regretted that local politics and 
self-interested views obtrude themselves into every measure of public utility" 
— letter of July 25, 1785 in his Writings (Fitzpatrick ed.), 28: 204. 

•"•oAug. 7. 1787 to Monroe — Burnett, Letters, 8: 631. 

si Ante xci. 



as a declaration of basic or "constitutional" character."' 2 The only 
discernible rational basis for such a criticism is the fact that the ordi- 
nance provided that "the preceding articles" — which meant, possibly, 
all its provisions, but was most probably intended to be limited in 
meaning — "shall be formed into a charter of compact; shall be duly 
executed by the President of . . . the Congress . . . ; shall be promul- 
gated ; and shall stand as fundamental constitutions between the thir- 
teen original states, and each of the several states now newly de- 
scribed" in the ordinance. 53 These words, which were Jefferson's 
own, might indicate a doubt of Congress' power to act, indepen- 
dently of special compacts between the states. But was it his under- 
standing that such compacts should first be made, and afterward 
executed and promulgated ? Or did he understand that a declara- 
tion by Congress that the provisions "should be" compacts (ignoring 
the form of charter), accompanied by the solemnity of execution 
and promulgation, would make them compacts? It is quite impos- 
sible to say ; although — having signed for Virginia the deed by which 
she ceded the territory, on conditions therein explicitly stated and by 

52 Mr. Dunn wrote: "The entire resolution . . . was to be 'a charter 
of compact,' but it was not to be unalterable" — namely, by Congress — "until 
the sale of lands by the United States was begun, and that sale Congress 
was not yet ready for" — Indiana, 188. Now, Mr. Dunn was clear that the 
ordinance was law for three years. Then, (1) as a lawyer he knew that 
every mere statute lacks finality in being immediately and forever alterable. 
Hence, (2) he seemingly here regarded the entire ordinance (see next note) 
as already a compact (see n. 123 of Sec. II) although temporarily alterable. 
Compare other statements commented on ante cclxii. Even had it been a 
compact he would have had no point, since he overlooked the fact that this 
alterability was a term of the compact itself — a provision of the ordinance. 
But since there were no compacts there was no defect in the ordinance in 
the sense here in question. 

■'■'•Jour. Cont. Cong. 26: 278; he had used the same words in his original 
report — ibid. 120. In David Howell's letter of Feb. 21 (when the terms of 
the ordinance had obviously in very large part, at least, already been agreed 
upon in committee) he wrote: "The committee have also agreed to report 
that the new states be laid off under the following express stipulations or 
perpetual covenants betwixt them and the present states" — W. R. Staples, 
Rhode Island in the Continental Congress (1870), 480; — namely, nos. 2, 3, 
and (in effect) 4 of the seven conditions enumerated ante following notecall 
7, and in addition the prohibitions of slavery and hereditary titles which 
Congress failed to approve. Now, since three conditions were added before 
March 1, and one of the above modified, it is possible (a) that Howell mis- 
conceived the committee's prior vote or (b) that it was changed. It seems 
more likely, however, that Jefferson intended only his seven numbered 
"principles" (the word "articles" was used solely in the passage quoted in 
the text) to be made interstate agreements. Jefferson's "states" (territories, 
but present organized entities) could have made compacts. 



the other confederated states specifically accepted, and all this through 
delegates in substance and fair construction specially empowered to 
act — he certainly should have been clear on those points/ 14 The con- 
duct of Congress, in doing nothing to initiate true agreements, would 
indicate that to it "compacts" were only solemn words, or words 
and formal acts. It seems fair to say that what little in Jefferson's 
writings bears on the subject suggests less confusion than do the acts 
of Congress, which in 1785 and 1787 simply assumed that merely 
calling provisions compacts made them such. And although Nathan 
Dane justly regarded himself as a much better practical lawyer than 
Jefferson, nevertheless on this matter of compacts comparison favors 
the latter; for Dane, even after many years for reflection, contended 
that the "compacts" of the Ordinance of 1787 really were such, al- 
though some other things in the record suggest that in doing so he 
was either disingenuous or inconsistent in this confusion. 55 

s* Moreover, it is to be noted that although Jefferson did employ in his 
political writings, when useful, the social compact theory — see George 
Burton Adams, "Jefferson and the Social Compact Theory," in the Amer. 
Hist. Assoc. Report for 1893, 165 at 173-76 — he did not confuse such fictitious 
compacts with actual legal agreements. Jefferson's motion and ordinance 
provision were, that the provisions should be made compacts and (there- 
after, as part of the compacts) should be alterable only "by the joint con- 
sent of the United States in Congress assembled" — as sufficient agents, made 
so by this compact, of the sovereign confederated states — and of the par- 
ticular State within which such alteration is proposed to be made" — Jour. 
Cont. Cong. 26: 278. This again suggests that he was not talking loosely 
of compacts as men did in political theory. But compare post n. 135. 

Jefferson wished to control the territories (in his terminology "states") 
only before admission to the Confederation — ante n. 22. To that end he 
wanted compacts. To these compacts his "states" could themselves be 
parties — ante ccliv (aliter the changing "inhabitants" of a territory as in the 
Ordinance of 1787), as well as the confederated states. The Ordinance of 
1787, however, purported to bind new states after their admission to the 

ss On the actions in Congress see n. 123 of Sec. III. As respects Dane, note 
that nearly two years after Jefferson's ordinance was passed, a grand com- 
mittee of which Monroe and Dane were members recommended the repeal 
of two resolutions, only, of that instrument; one relating to the number and 
size of new states, the other the recommendation relating to compacts, here un- 
der discussion — March 4, 1786, Jour. Cont. Cong. 30: 134. Now, why this 
last particularly? It seems probable that it teas already plain that in any 
thorough revision of the ordinance compromises would be forced that could 
never be accepted as true interstate compacts — compare reference to King's 
motion of March 1785 in n. 123 of Sec. III. This problem of the number and 
size of states remained a primary difficulty — to some, including Jefferson, ap- 
parently, the greatest of all difficulties — down to and after the adoption of the 
Ordinance of 1787. Later, repeal of all Jefferson's provisions was recom- 
mended — May 10, 1786, ibid. 255. But the first recommendation seems to 
indicate that the members of the grand committee, including Dane, knew 



Passing now to provisions of Jefferson's plan which were in 
truth significant when one inquires why it never received actual 
application, there was one which virtually precluded any organiza- 
tion of new states until it could be removed ; but this provision was 
not Jefferson's. There was another, most distinctly his, which was 
lost by mere accident in the debate on the ordinance. There were 
other provisions — also his, and most characteristic of his political 
philosophy — which in the opinion of those who favored substitution, 
for his plan, of the Ordinance of 1787, did not provide for local 
government of adequately stable and orderly character ; and the pres- 
ence of these last provisions in his ordinance was the effective cause 
of its repeal. 

The provision first referred to was one to which Congress had 
committed itself in 1780. In its proclamation of that year in which 
it called upon the states to cede to the Confederation their claims to 
western lands, engaging itself to organize new states from any so 
acquired, it had stipulated that these states should be of dimensions 
not less than one hundred nor more than one hundred and fifty miles 
square. Massachusetts ceded her claims on the basis of this engage- 
ment ; Virginia did the same, and explicitly embodied in her act the 
condition just stated. 50 For this bit of incredibly fatuous legisla- 
tion by Congress Jefferson was in no degree responsible ; but it was 
necessarily embodied in his ordinance. That also provided that a 
population equal to that of the least populous of the thirteen original 
states should be required of any new state as a condition for admis- 
sion to the Confederation. These two provisions, and particularly 
their conjunction, caused infinite difficulties. 

This obstacle, of itself, compelled some revision even of Jefferson's 
plan, and once the revision began it raised problems which were the 
chief subjects of contention until — and indeed after — adoption of the 
Ordinance of 1787. Attitudes varied extremely toward westward 
migration as a matter of principle ; some, perhaps many, public men — 

perfectly well what a true compact was. Inconsistencies in his views of 
interstate compacts in 1830 can be noted in his Abridgment. 9 (app.): para. 
2 on p. 15, bottom of 22 and of 24, and sees. 28-32. 

*>6 Jour. Cont. Cong. 26: 114. Justin Winsor's The Westicard Movement 
(1897) reads as though he regarded the restriction as representing Jeffer- 
son's personal policy — 258, 262. The same is true of Professor Parson — 
American Frontier. 62-63. The true facts are recited in the report of the 
grand committee cited ante n. 55, at 132. 



including Arthur St. Clair, who was to be the first governor of the 
West — would have suspended it altogether had such action been 
possible. 1 "' 7 Rufus King regarded every emigrant beyond the Alle- 
ghenies as lost to the Union, 58 and undoubtedly a large part of the 
eastern creditor classes held that opinion. Such men could not have 
been interested in accelerating the organization and admission of new 
states, independently of divergent opinions respecting trans-mountain 
trade, foreign relations, or the effect of new states on the balance of 
political power within the Confederation. There was a general fear 
of dismemberment of the large states and of the admission of new 
ones. 59 

The first step toward amendment of the compact between Vir- 
ginia and the Confederation which had resulted from that resolution 
began with a motion by Monroe to refer to the grand committee, of 
which he was then a member, "the cessions and divisions of Western 
lands and territories.'"'" It reported that the division provided for 
in Jefferson's ordinance, which paid no attention to natural boun- 
daries or the varying character of soil in different regions, was im- 
practicable, and that if a division were made into such small states, 

"In debate, Aug. 18, 1786— Burnett, Letters. 8: 440. 

•"■* Letter of Sept. 3, 1786 to Jonathan Jackson — ibid. 8: 458. The same 
idea, with the qualification "should there be an uninterrupted use of the 
Mississippi at this time," is stated in King to Gerry, June 4, 1786 — ibid. 380. 

39 On Dec. 19, 1785 Monroe wrote from Congress (just after a long trip 
in the West) to Madison: "I find the most enlighten'd members here fully 
impressed with the expedience of putting an end to the dismemberment of 
the old States, doubtful of the propriety of admitting a single new one into 
the confederacy" — Burnett, Letters, 8: 277; compare Monroe to Madison, Dec. 
26, ibid. 278. John Jay wrote to John Adams about the same time: "The 
rage for separatism and new States is mischievous; it will, unless checked, 
scatter our resources, and in every view enfeeble the Union"— Oct. 14, 1785, 
in W. Jay, Life of John Jay (1833), 2: 176. Jefferson was not opposed to 
Kentucky's independence, and thought that desired in Virginia whenever the 
ultramontane settlers should "think themselves able to stand alone" — letter 
of March 24, 1782 to Monroe, Writings (Ford ed.), 3: 54; and he deemed 
a forced connection with the West to be neither in the interest nor within 
the power of the East— letter of Dec. 16, 1786, ibid. 5: 228. Monroe, on the 
other hand, considered consent to Kentucky's demand for independence to 
be not only unnecessary but also opposed to the best interests of both Vir- 
ginia and the western settlements; to those of the former in weakening her 
influence within the Confederation — letter of Aug. 25, 1785 to Jefferson, 
Burnett, Letters, 8: 203; and to those of the latter in lessening their sup- 
port in Congress — letter of Jan. 19, 1786 to Jefferson, ibid. 286. On the first 
point see similar views in Grayson to Madison, Aug. 21, 1785 — ibid, 194; 
Virginia delegates to Governor Henry, Nov. 7, 1785 — ibid, 250, 

™ Jour, Cont, Cong. 30: 132, 



as compelled by the Virginia compact, "the probability [was] that 
many of them [would] not soon, if ever" attain the population req- 
uisite for admission into the Confederation.'^ This report was im- 
mediately referred to a special committee headed by Monroe, and in 
its report the same objections were emphasized ;' ; - after which Congress 
recommended to Virginia a revision of the condition imposed in her 
deed of cession, to allow Congress to create not more than five nor less 
than three states in the territory ceded. 03 To this recommendation 
Virginia acceded only a year and a half after passage of the Ordi- 
nance of 1787, which contained that provision; thus curing its in- 
validity — unless the adoption of the Constitution had done so. 04 

Apparently, this action resulted primarily from Monroe's con- 
viction, derived from a trip westward in 1785, that large areas near 
the Great Lakes and the Mississippi were "so miserably poor" that 
they could never maintain any considerable population. 05 However, 

«i March 24, 1786 — ibid. 132-33. Both this report and Monroe's report of 
May 10 (post n. 62) recited that Congress had earlier, on an unspecified date, 
recommended that the ceding "states" (only Virginia was involved) revise 
their deeds of cession as respected the condition fixing dimensions of new 
states. Possibly there was no such prior resolution (see Monroe to Madison. 
Dec. 19, 1785; and to Jefferson, July 16, 1786— Burnett, Letters, 8: 277, 403); 
at all events Congress on July 7, 1786 passed a resolution recommending 
that Virginia alter the conditions of her cession and give Congress freedom 
to divide the ceded territory in not more than five nor less than three states — 
Jour. Cont. Cong. 30: 390-94. And this resolution was the basis of Virginia's 
action of Dec. 30, 1788; see Carter, Territorial Papers, 2: 172. Note that 
this resolution and the two committee reports assumed that formal action 
of revision was required by only one party to the compact — Virginia; that 
the other confederated states could be bound by committee reports and votes 
in Congress. Jefferson had not been guilty of this faulty reasoning in his 
report of 1784 — ante n. 54. Monroe described it as "between the U. S. and 
Virga." — Burnett, Letters, 8: 277. It was one between Virginia and her 
sister sovereign states, but that was not synonymous with the "united states 
in Congress assembled" — it merely happened that the agents of the several 
states were also their delegates in Congress, for convenience. Contrast 
Monroe's exact usage of "a Citizen of one of the United States," "a Citizen 
of any of the United States," "citizens of the United States or foreigners" — 
Jour. Cont. Cong. 30: 254. 

(i - Committed on March 27, report on May 10, 1786 — Jour. Cont. Cong. 
30: 139 n. 1, 251-52. 

«3 July 7, 1786— ibid. 390-94. 

e* See ante cxcviii; Carter, Territorial Papers, 2: 172. 

115 Hence, would "perhaps never contain a sufficient number of Inhabitants 
to entitle them to membership in the Confederation" under Jefferson's re- 
quirement of a population equal to that of the then least populous of the 
original states. See his letter of Jan. 19, 1786 to Jefferson — Monroe, Writ- 
ings, 1: 117, or Burnett, Letters, 8: 286. His reference to "my several routes 
westward" is perhaps to several parts of this trip of 17S5. In 17S4 he had 
made another trip that took him near Lake Erie — Writings. 1: 40-41. The 



increasing knowledge of the West must have given others similar 
ideas (unless reasoning about political power sufficed to lead them 
to the same conclusion), since Monroe after returning from his trip 
reported from New York that "the most enlighten 'd members" of 
Congress were "well inclined to a revision of the compact" respect- 
ing division of the territory. 60 It is notorious that the strength of 
opinions on these subjects of large or small states and sectional power 
was extraordinary at that time — and perhaps, despite the disap- 
pearance of slavery, still is. But the most remarkable aspect of the 
strength of these opinions in the 1780 's is their purely speculative 
basis. And in the case of Jefferson, who felt more strongly regard- 
ing them than on other matters which he might have been expected to 
consider far more important,' 57 it is extraordinary that they were the 
most speculative of all. 68 In the end Congress exercised its discretion 

trip in 1785 was to attend a meeting of commissioners to make a treaty with 
the Indians — see letter of Aug. 25, 1785 to Jefferson, Writings, 1: 107; Burnett, 
Letters, 8: 202; also Monroe, Writings. 1: 112. 
en Burnett, Letters. 8: 277. 

67 Post cccv seq. 

68 That is, not based on assumptions regarding soil, climate, and crops — 
nor on reasoning about intangible political influences — but on premises re- 
specting "the nature of things" and the nature of "American character." 
"In the nature of things," he said, there should be large states on the Atlantic, 
small in the interior. "Considering American character in general, that of 
those people particularly," large states "would crumble into little ones," and 
if they should decide to divide themselves "we are not able to restrain them. 
They will end by separating from our confederacy & becoming its enemies" 
—letter to Monroe, July 9, 1786, Writings (Ford ed.), 4: 246-48. "A tractable 
people may be governed in large bodies but in proportion as they depart 
from this character the' extent of their government must be less. We see 
into what small divisions the Indians are obliged to reduce their societies" — 
letter of Dec. 16, 1786 to Madison, ibid. 227. 

Accordingly, in his own governmental plan, contemplating ten tiny states, 
he gave the inhabitants complete freedom from the beginning — ante ccliv-vi; 
j)ost cclxxx-lxxxi. 

Jefferson had definite opinions of the character of western people: "I 
never had any interest westward of the Alleghaney; & I never will have any. 
But I have had great opportunities of knowing the character of the people who 
inhabit that country" — letter to Madison, Jan. 30, 1787, Writings (Ford ed. ), 
5: 256. His opportunities for learning indirectly of the western country were 
certainly excellent; and it would be strange if he had not had complete con- 
fidence in the basis of his governmental plan. Note the query post ccv-vi. 

The area of the states in the Old Northwest is now computed at 248,313 
square miles, which includes a portion of Wisconsin taken from the Louisiana 
Purchase. In explaining his fears of only two large states Jefferson assumed 
an area of 160,000 square miles, "three times as large as Virginia within 
the Alleghaney" — ibid. 132. Both figures were exaggerated. The area of all 
save one of the states actually created is greater than that of Virginia, the 
largest exceeding it by nearly forty-three per cent. 



to create the maximum number of states permissible — five ; certainly 
neither on the basis of Jefferson's theories nor primarily on proved 
agricultural capacities, without discernible harmful consequences. 

The first report by Monroe's committee recommended, as above 
indicated, a reduction in the number of states but retained Jefferson's 
population requirement for admission to the Union. This was in 
accord with Monroe's personal policy. He believed that the new states 
must be large to offset their supposed infertility. He did not wish, how- 
ever, to delay, but rather to accelerate their admission, and this was ac- 
complished by requiring the same population for a larger area. How- 
ever, he also believed that the interests of the frontier states would 
afford little support to many objectives of the Confederation, and 
might be opposed to them, and therefore he favored the reduction in 
their number for the second reason that this would lessen the danger 
to the original states presented by the power of the new states in 
Congress. 61 ' 

It is manifest that this reasoning could not have been satisfactory 
to two classes of Monroe's fellow committeemen: those, if any, who 
were seriously fearful of any loss of power to the Atlantic states, and 
those who believed that the votes of western states would support in 
federal divisions the views of another than their own section of the 
country. There can be little doubt that for these reasons King would 
have been dissatisfied. And with reason ; for migration westward 
on a large scale began earlier in the South than the North, the 
frontiersman was better understood by southerners, and their attitude 
was more friendly to him. The Atlantic states were certain to lose 
some power, and the South was more likely to gain western sympathy 
than were New York and New England. 7 " Monroe soon met with 

« <J See especially Monroe to Jefferson, Jan. 19, 1786 — Writings, 1: 112; 
Burnett, Letters. 8: 286. 

™ It is possible that in explaining the different attitudes of northerners 
and southerners one should assume a greater tendency of large-scale specu- 
lators in the South to become frontiersmen themselves. Mr. Abernethy re- 
marks of one period of speculation in the Southwest : "There are significant 
implications in the fact that not one of the great land speculators of the 
Philadelphia and Eastern coterie of comparable standing to that of Shelby. 
Christian, Henderson, Russell, Preston, and their ilk settled in the West. 
They wanted the land merely for speculation" — T. P. Abernethy, Western 
Lands and the American Revolution (1937), 301-2. Of course large-scale 
northern speculators did go a little later to the Northwest. 

Few faced as clearly as George Mason and Jefferson the fact that the 
Atlantic states were bound to lose political power. In the Federal Convention. 



difficulties in his committee; according' to him his opponents (those 
led by King) wished "to rescind everything" theretofore done, "par- 
ticularly" to raise the population requirement for admission, substi- 
tuting for the existing formula a requirement of a thirteenth part 
of the total population of the original states at the time of admitting 
a new state. Each side suspected the worst of the other. The demand 
for the new population test, "with some other restrictions" (pre- 
sumably on self-government) which Monroe's opponents wished to 
impose on the territory, led him to conclude that their objective was to 
prevent altogether the admission of any new state. 71 This opinion was 
expressed immediately after the submission of his committee's sec- 
ond report, which, as compared with the first, showed a great strength- 
ening of the governor's power and of congressional control — in one 
instance seemingly by Monroe's initiative. 72 Three days after writing 
the letter in which he expressed the opinion just quoted, and in which 
he expressed the further opinion that with one exception the remain- 
ing Massachusetts delegates — namel}'- King, Sedgwick, and Nathan 
Dane — were "the most illiberal" he had ever known from that state, 73 
Dane was added to his committee, 74 and undoubtedly (for a brief time) 
to his troubles. 

But that was nothing as compared with those provoked in the 
committee by the bitter division in Congress over Jay's efforts to 
secure a trade treaty with Spain, particularly favorable to eastern 
commercial interests and especially those of the New England fishery 
interests, at the cost of foregoing for twenty-five or thirty years navi- 
gation of the Mississippi. AVhen that controversy was at its climax 
Monroe became convinced that "Jay and his party," of which King 
and Dane were devoted members, would stop at nothing in seeking 

speaking of the hesitations so evident in that body on this point, the former 
said: "If it were possible by just means to prevent emigrations to the West- 
ern Country, it might be good policy. But go the people will as they find it 
for their interest, and the best policy is to treat them with that equality 
which will make them friends not enemies"— M. Farrand, The Records of 
the Federal Convention of tl87 (4 vol. 1937), 2: 454. 

7i Letter of July 16, 1786 to Jefferson— Writings (Hamilton ed.), 1: 140-41; 
Burnett, Letters, 8: 404. 

~- These matters are discussed post ccxc-xciii. 

73 He added of Dane and King: "The former is I believe honest but the 
principles of the latter I doubt" — citation as in n. 71. 

7 -t July 19, 1786 — Jour. Cont. Cong. 30: 418 n. 1. He was replaced on 
Aug. 7 by Melancton Smith — ibid. 502 n. 1; and on Sept. 18 both he and Smith 
were included in the committee when Monroe and King were released. 


Illinois historical collections 

to attain their objective, which he believed was either to disrupt the 
Confederation or to drive the western settlements into separation 
from the Union, thus ending the possibility of new states, and keep- 
ing the weight of population in the East "to appreciate the vacant 
lands of New York and Massachusetts." 7 "' In turn, King thought 
that all the delegates of Virginia were "probably deeply interested in 
the Ohio and Kentucky lands." 70 

To the action of his committee on two points Monroe was strongly 
opposed. One was the requirement of too great a population, he 
thought, as a prerequisite for admission of a territory into the Union. 

It was his opinion that the condition in Virginia's cession re- 
quiring the ceded territory to be organized into states could not law- 
fully be indirectly defeated by placing insuperable obstacles in the 
way of their organization ; which, he felt, the new population formula 
forced on him in committee did. In his private letters he had ex- 
pressed a determination, unless his opponents accepted Jefferson's 
formula, to propose another convention on the subject between Vir- 
ginia and the Confederation. 77 However, the new formula was 
adopted. Nor was that all. Despite the compact made in 1784 be- 
tween Virginia and her fellow members of the Confederation — despite 
its requirement that new states be organized and admitted, and be 
equal in all ways to the original states — despite the consequent con- 
stant repetition of those terms in the proceedings of Congress — the 
committee's report, after repeating these provisions in accordance 
with the compact, though subject to the new population formula, 
made admission subject to an additional condition, namely: "Pro- 
vided the consent of so many States in Congress is first obtained as 
may at that time be competent to such admission." 78 It is perfectly 
clear that nothing in the original Articles of Confederation had ref- 
erence to the admission of the new states here involved ; that the 

75 See the postscript of Monroe's letter of Aug. 12, 1786 to Governor 
Henry, Burnett, Letters. 8: 424, and his letter to Madison, Aug. 16, in ibid. 
427. His suspicions that some of his opponents might favor dismemberment 
of the Union were not unfounded; see Dr. Burnett's summary statement in 
his The Continental Congress (1941), 656-57. 

76 King to Gerry, June 4, 1786— Burnett, Letters. 8: 381. 

" Letter of July 16, 1786 cited ante n. 71. He said, "and deny the right 
of the U. S. to act otherwise in it"; but how Virginia could secure a new 
compact with the other confederated states ("Confederation") does not 

-s Sept. 19, 1786— Jour. Cont. Cong. 31: 672. 



compact of 1784 between independent sovereign states relating to 
them, either outside those Articles or in amendment of them, was 
controlling ; and that this last proviso in the report was legally with- 
out basis. If authority be needed on that point there is that of Chief 
Justice Taney. However, all this criticism is no more applicable to the 
action of Monroe's opponents in his committee than to the action of the 
Federal Convention in accepting Gouverneur Morris' draft of the 
Constitution's clause on the admission of states in discretionary form 
without excepting from its operation the territory Virginia had ceded 
— since, as respects states from that region, no legal discretion could 
actually have existed. 7 " 

To none of the other differences between the second and third 
reports of the committee could Monroe have been seriously opposed, 
if at all. But the two provisions just referred to are sufficient to 
justify an assumption that he must have desired — and King been 
willing — to be disassociated from the third report, the committee being 
reconstituted, and both of them relieved of service, on the day before 
that ' was submitted to Congress. 80 Nevertheless it seems highly 
probable that at least its substance must have been agreed upon and 
drafted by the old committee. 

This was not, however, the end of the matter. It will be remem- 

T *> See cxxviii ante, clxxxv post. 

Professor F. L. Paxson has written that "Jefferson proposed loose and 
inadequate terms of admission" — American Frontier, 62. Since Congress had 
no explicitly stated power under the compact between Virginia and the Con- 
federation to set any conditions, perhaps Jefferson can be fairly criticized 
only for proposing any. If it be assumed that Congress might impose rea- 
sonable conditions (if not inconsistent with the compact, as that of Monroe's 
committee stated in the text was), then Jefferson would be justly open to 
criticism for any unreasonable requirements. But his population require- 
ment, tested by later events, could scarcely be judged unreasonable — post 
n. 86. What Mr. Paxson meant by "loose and inadequate" is not clear. 

so On July 13, (1786) Congress voted recommitment to Monroe's com- 
mittee of his report of that day "and Petition of Inhabitants of Kaskasies" — 
Jour. Cont. Cong. 31: 561 n. 1. A report on the second subject was submitted 
on Aug. 23 and agreed to on Aug. 24, Monroe being there named as chairman 
—ibid. 561 n. 1, 563. It was in six lines, in Monroe's writing: that the peti- 
tioners be informed that a plan for government of the entire territory was 
under consideration, and that its adoption would be "no longer protracted 
than the importance of the subject and a due regard to their interest may 
require" — ibid. 563. The main subject remained to be disposed of, and on 
Sept. 18 a new committee consisting of William Samuel Johnson, Charles 
Pinckney, Melancton Smith, Nathan Dane (see ante n. 74), and William 
Henry was appointed to report on that — ibid. 667 n. 1. They reported the 
next day — ibid. 669-73; evidently, then, the report must have been prepared, 
at least substantially, in the old committee. 



bered that Congress bad recommended to Virginia that she alter her 
compact with the confederated states as respected the permissible 
number, and therefore possible variation in size, of new states to be 
admitted. 81 If Virginia should adhere to the stipulation of ten small 
states, probably none could ever be admitted under the King popula- 
tion formula. Only a fortnight after the third report had been made, 
but also after Jay had lost his battle over the Mississippi, Dane moved 
that "when the said State shall finally determine, relative to the 
said recommendation, Congress will ascertain and fix the number of 
free inhabitants which shall entitle each . . . new state ... to an ad- 
mission into the Confederacy." 82 Dane was not a man to act without 
a purpose, and no possible purpose for this motion is discernible 
unless it was a tender of peace to Monroe — presumably in the hope 
of avoiding the anomalous action which in fact occurred, of the Ordi- 
nance's being passed with a provision giving Congress discretion to 
create from three to five states long before Virginia authorized that 
change in the compact. 8 " Nothing on the subject is of record, but 
again it is impossible to suppose that a matter that had been so con- 
troversial — and was to be equally so within a few months in the Fed- 
eral Convention — was not the subject of much thought. There was 
no further debate of the subject in Congress until the first proposals 
of the Ohio Company reopened serious consideration of the govern- 
mental plan. King's provision was then struck out, and Dane him- 
self included in his first full draft of the Ordinance of 1787 the 
provision that a population of sixty thousand should entitle a state 
to admission. 84 In this connection it is not to be forgotten that no 
other than Alexander Hamilton had approved admission when popu- 
lation reached twenty thousand. 83 

King's formula was necessarily somewhat less liberal than Jeffer- 
son's to the inhabitants of the prospective new states. Looking back- 

si Ante at notecall 63. 

•^ Oct. 4, 1786— Jour. Cont. Cong. 31: 738. 

83 See ante n. 61. It is possible that Monroe's attitude, if allowed to reach 
the opposition, may have facilitated a compromise on 60,000 as the popula- 
tion required for admission. The opposition evidently relied on something 
in the Ordinance to secure Virginia's consent to the desired change in the 
compact, and it seems likely that it was this population amendment. 

si It survived a debate on May 10, was stricken in the debate of July 9, 
and the new formula appeared in Dane's draft of July 11 — Jour. Cont. Cong. 
32: 281 n., 283, 320. 

ss Ante n. 42. 



ward, we know that the rule actually adopted in the Ordinance of 
1787 was (as applied — and probably fairly) the most liberal; that the 
results under Jefferson's would have been not very dissimilar; but 
that King's rule would very greatly have postponed the admission of 
each of the states of the Northwest Territory, leaving Wisconsin still 
a territory until after the opening of the present century. S6 The 
consequences of its adoption upon the later course of our national 
history are extraordinary to contemplate. Thus the King-Dane 
group in the committee, the conservatives, first won a very great vic- 
tory over Monroe, and then lost all they had won and even more by 
the act of Dane, who was a stalwart of their party. There is no evi- 
dence on the subject, but the matter was so bitterly contested as to 
justify suspicion that some understanding preceded Dane's pro- 
posal of the new formula. It is unlikely that either side made a 
voluntary sacrifice. The importance of the population requirement 
was lessened when it became certain that the first population of the 
territory (so far as frontier settlement could be at all controlled), 
and likewise the initial form of government established over it, 
would be what the conservatives desired. Whatever may have been the 
compromise, if any, it seems likely that what gave Monroe's adherents 
substantial victory in 1787 was their sounder (or possibly merely 
luckier) estimate of the relative future growth of the western and 
eastern states. 

In considering the causes which impeded progress in developing 
plans for territorial government there is another provision of Jeffer- 
son's original report, but not of his ordinance as adopted, to which 
attention should be called. This was the clause prohibiting slavery 
in all federal territory, north and south, and which was not approved 
by Congress. 87 It might be imagined that the exclusion of the anti- 

se Ohio, actually admitted in 1803 (see ante n. 303 of Sec. II), would have 
qualified under Jefferson's formula well before 1810 but under King's — as 
pointed out by George Bancroft, History of the United States of America 
(last revision, 1887), 6: 281 — not until 1822. The corresponding figures for 
the other states would be: Indiana — 1816, before 1820, after 1850; Illinois — 
1818, before 1830, after 1860; Michigan— 1837, well before 1840, after 1880; 
Wisconsin — 1848, well before 1850, after 1900. Except in the case of Wis- 
consin, I have not checked Mr. Bancroft's figures. Mr. Dunn did Monroe 
an injustice in referring to the population formula forced upon him by his 
opponents as "Monroe's plan" — Indiana, 205. 

" Jour. Cont. Cong. 26: 119, 247, 277; Jefferson to Madison, April 25, 
1784— Burnett, Letters, 7: 500; Jefferson, Writings (Ford ed.), 3: 471. 



slavery provision might rather have accelerated than impeded further 
progress of plans for territorial organization. That, however, would 
be dependent upon balancing the adjustment of various regional in- 
terests, and it is extremely interesting that to Mr. Burnett "the ex- 
clusion of the provision for the abolition of slavery appears to have 
been one of the reasons why the plan of government lay dormant for 
more than three years. ' ' 8S 

We have now, after correcting misconceptions respecting the 
general nature of Jefferson's governmental plan, considered the rea- 
sons why it could not for some years be given actual application in 
territorial government. It was necessary to abandon hopes of con- 
trolling in any idealistic manner westward migration, to compromise 
between indiscriminate location and township sales of land, to make 
adequate treaties with the Indians. Of these matters very little has 
been said. It was further necessary to agree upon the number, and 
so upon the approximate size, of new states, and to fix the population 
they should be required to attain precedent to their admission to the 
Union. Of these matters, since they became part of the Ordinance 
of 1787, much more has been said, their history being traced from 
Jefferson 's plan through the several stages of its revision down to their 
ultimate form in the Ordinance. These problems being out of the 
way, nothing over which there could reasonably have been dispute and 
delay remains for consideration except the agreement on the general 
character of the territorial government that was to be established and 
the details of its administrative provisions. It might be supposed 
that these last two problems must have aroused sharp divisions of 
opinion in the committee, since two years and more passed between 
the appointment of Monroe's committee in March 1786 to prepare a 
new governmental plan and the submission for first reading of the 
Ordinance of 1787. 

At the beginning of this section something was said of the extra- 

ss Letters, 8 : xxxix. If this opinion is based upon his unrivaled knowl- 
edge of what was, in those years, in the minds of members of Congress and 
their correspondents, I should not venture to doubt its soundness. If, how- 
ever, it is intended to convey the idea, or is based on an assumption, that 
New Englanders waited until 1787 to purchase lands because they were wait- 
ing for a prohibition of slavery, the opinion seems very questionable. Reasons 
will be given later for believing that antislavery did not actually play in 
the plans of the Ohio Company and the drafting of the Ordinance of 17S7 
the part which many have assigned to it. 



ordinarily democratic character of Jefferson 's plan. It may be empha- 
sized here. Before Vermont had done so, and eight years before the 
constitution of Kentucky became the first of any Union-state to follow 
Vermont in doing so, the ordinance provided for manhood suffrage 
in all federal territory, and so, prospectively, in the states that would 
be formed therefrom. 80 As respects local government by Congress, it 
was limited in nature to the "preservation of peace and good order"; 
in time, to such action as might "from time to time" be necessary, 
and only until the settlers claimed the privilege of self-government. 
The establishment of temporary self-government, under the constitu- 
tion and laws of any original state which the settlers preferred, was 
subject to no requirement whatever of definite population; "the set- 
tlers" could initiate it at any time. If, however, the prospective bur- 
dens of such a temporary government delayed its creation, they could 
continue living, with the assurance of scanty interference meanwhile 
by Congress, until they numbered twenty thousand, when they could 
form their own constitution and permanent government. 90 

How different was the situation under the governmental plan of 
the Ordinance of 1787 has been already noted in a general way. As 
Professor McLaughlin made plain many years ago, the distribution 
of powers between colonies and mother country that grew up in the 
administration of the old Empire became the basis of American fed- 
eralism. 91 The first attempt to put it on paper was in the Articles of 

89 The electors were to be "free males of full age" — Jour. Cont. Cong. 
26: 276. Of eighteenth century constitutions, both of Vermont's, of 1786 and 
1793, conferred manhood suffrage; Kentucky's of 1792, and, only alternatively, 
Tennessee's of 1796 (which required a freehold of nonresidents). 

so For a second reason (see ante n. 21 for a first) why Jefferson's ordi- 
nance was not put into actual effect, Dr. Farrand suggested that it could not 
"operate until settlers became numerous" — The Fathers of the Constitution. 
71. This was true of the admissions clause of both ordinances; but under 
that the Ordinance of 1787 proved actually to be more liberal — ante n. 86. As 
respects every other part of the two enactments a comparison greatly favors 
Jefferson's, and Dr. Farrand's statement is therefore inaccurate. 

"A. C. McLaughlin, "The Background of American Federalism" (1918), 
American Political Science Review. 12: 214. 

"Let us reduce this to its lowest possible terms: (1) federalism as a 
political system rests primarily on the distribution of powers among govern- 
ments; (2) in the old British empire, there were many governments, and 
in practice, if not in law, each occupied its particular field; (3) the powers 
assigned to the national government under our Constitution, were, in an 
amazing degree, the powers commonly exercised by the central government 
of the old empire" — A. C. McLaughlin, "Some Reflections on the American 
Revolution," in T. Sizer, et al., Aspects of the Social History of America 
(1931), 33. 



Confederation, and in this respect the Ordinance was an addendum 
to the Articles 92 in that it created a colonial system — hardly dis- 
tinguishable from that from which the Revolution had just freed the 
confederated states. 

It remains to trace the legislative proceedings by which this was 
accomplished, and to consider the causes of that action. 


The general causes are, partially revealed at the very beginning of 
those proceedings. Various officers and soldiers of the Revolutionary 
army petitioned Congress in the spring of 1783 to make them a grant 
of land for a new state beyond the Ohio — and, in fact, to bear most 
of the expenses in its settlement. The most remarkable features of the 
plan, as illustrating Anglo-American instincts of self-government, 
were that, in advance of any settlement, "the associators" were to 
frame a constitution ("the total exclusion of slavery ... to form an 
essential and irrevocable part" thereof) ; agree on rules for the pre- 
vention and punishment of crime and the maintenance of peace and 
good order, which should for two years (unless sooner altered) have 
the force of law ; and elect delegates in Congress who should take their 
seats "as soon as the new State [should] be erected." 93 That is, there 
should be no period of territorial status preceding admission to the 
Union. 9 * And why need there have been such, considering, as Wash- 
ington said, that the promoters were of such qualities that the land 
could not be "so advantageously settled by any other Class of Men".? 
Shortly after their petition had been received by Congress it voted to 
accept, subject to conditions, Virginia's offer to cede her claims to the 

'■'- A lawful addition, by amendment of the Articles, it has been contended 
in the second section of this introduction — ante lxxxiv-xci; and a legislative, in 
no part "constitutional," addition, as shown in the third section. 

93 The proposal was that Congress should furnish clothing, arms, and 
utensils. They are printed in 0. Pickering, Life of Timothy Pickering. 
1: 546-49, see 457-60; the proposals, petition to Congress, General Putnam's 
explanatory letter of June 16, 1787 to Washington, and the latter's letter of 
June 17 to Congress, are in W. P. Cutler, Manasseh Cutler. 1: 156, 159, 167, 
162 respectively. Washington's letter is in his Writings (Fitzpatrick ed.), 27: 

s* Whether this was the final plan, or the plan of a first draft (pre- 
sumably Pickering's), is not certain; for a draft by General Putnam lacked 
this feature — R. Buell, The Memoirs of Rufus Putnam and Certain Official 
Papers and Correspondence (1903), 215. 



Northwest. 95 At this same time various problems relating to Indian 
affairs were under consideration by a committee of which James 
Duane was chairman, and by order of Congress Duane had con- 
sulted General Washington/ 10 It is evident that any long-time solu- 
tion must have suggested the necessity of establishing some local gov- 
ernment over the western settlers, and in fact the preparation by 
Jefferson of his ordinance of 1784 for the government of the federal 
territories resulted from the action by Congress on one resolution 
reported by Duane 's committee in October 1783. 07 After dealing with 
the subject primarily referred to it, the committee submitted these 
additional reflections : 

that they do not offer the measures which they have suggested as a 
sufficient security against the increase of feeble, disorderly and dis- 
persed settlements in those remote and wide extended territories; 
against the depravity of manners which they have a tendency to pro- 
duce; the endless perplexities in which they must involve the admin- 
istration of the affairs of the United States ; or against the calamities 
of frequent and destructive wars with the Indians, which reciprocal 
animosities unrestrained by the interposition of legal authority must 
naturally excite; and that in their opinion nothing can avert those 
complicated and impending mischiefs, or secure to the United States 
the just and important advantage which they ought to derive from 
those territories, but the speedy establishment of government and the 
regular administration of justice in such a district thereof as shall be 
judged most convenient for immediate settlement and cultivation : 

Resolved, That it will be wise and necessary, as soon as circum- 
stances will permit, to erect a district of the western territory into 
a distinct government, as well for doing justice to the army of the 
United States, ... as for the accommodation of such as may incline to 
become purchasers and inhabitants; and in the interim, that a com- 
mittee be appointed to report a plan, consistent with the principles of 
the Confederation, for connecting with the Union by a temporary 

95 The quotation is from Washington's letter to Congress, June 17, 1783 — 
Writings (Fitzpatrick ed.), 27: 16. The vote bv Congress was of Sept. 13, 
1783— Jottr. Cont. Cong. 25: 554-64. 

™IMd. 24: 264 n. 1, 421 n. 2. 

07 The committee submitted two resolutions; one, that a committee be 
appointed to report an ordinance for regulating the Indian trade; the other, 
that a committee be appointed to report a plan for the temporary government 
of a district of the western country. One would expect Jefferson's govern- 
mental plan to have resulted from the second commitment; in fact it re- 
sulted from the first. He was made chairman of the first committee, Duane 
of the second, but the duties of both eventually devolved upon Jefferson. Ibid. 
25: 693 n. 1; 26: 118. 



government, the purchasers and inhabitants of the said district, until 
their number and circumstances shall entitle them to form a perma- 
nent constitution for themselves, and, as citizens of a free, sovereign 
and independent State, to be admitted to a representation in the 
Union ; provided always, that such constitution shall not be incom- 
patible with the republican principles, which are the basis of the 
constitutions of the respective states in the Union. 08 

The second of the passages italicized in this quotation indicates an 
objective of maintaining peace in the border settlements ; the third. 
that of protecting the titles of eastern speculators ; and notwithstand- 
ing that the fourth reflects a doubt whether Congress had power to 
act at all on the subject, the fifth reflects an inclination — all the more 
significant if not an opinion consciously considered — not only to main- 
tain the "temporary" government until admission to the Union but 
to make admission dependent upon "circumstances" unstated in the 
conditions set by Virginia on her cession and approved by Congress 
just one month before this report by Duane. u ' J And, as to the ques- 
tion of the duration of territorial government, let it be noted that al- 
though in state papers of Congress and the several states there had 
been various references before this time to the organization of "states" 
in the West — and various references after this time were made to 
their organization — virtually none of all these discloses any intent 
whatsoever as to whether anj^ probationary period of tutelary status 
should precede admission to the Confederation, let alone the duration 
of such. 100 The significant facts are : that conservatives were able 
to establish a requirement of probation and of prolonged probation. 

As stated above, it was as a result of Duane's report that Jeffer- 
son drafted his governmental plan, which provided for the organi- 
zation, almost immediately, of "states" in the fullest sense over the 
western settlers, and but for a last-minute amendment would have 
provided for no government by Congress antecedent to admission into 
the Union. 101 The fact that Congress adopted his plan, with that 
amendment, clearly indicates that liberal opinions had dominated 

as Oct. 15, 1783— Jour. Cont. Cong. 25: 693-94; italics added. 

99 The first embodies the assumption, still prevalent at that time (ante 
cclxiii seq.) that settlement could be directed into particular districts succes- 
sively. Compare ibid. 24: 406, 444 n., and 25: 560, 564. 

i°° Compare ante n. 14 of Sec. II, also lxxii. 

i°i On the ideas of a "state" — and even of a "free sovereign and inde- 
pendent State" — existing before admission to the Union, compare ante clxviii 



Congress at Annapolis in the autumn of 1783 and still dominated it 
when the plan was adopted in the spring of 1784. For it was in long- 
debates at Annapolis, and perhaps earlier at Princeton, that all the 
substance of Jefferson's ordinance had been agreed upon. 10 - But 
much happened thereafter, particularly the Shays Rebellion, to 
strengthen conservatives ; enough to enable them to make both the 
Ordinance of 1787 and the new Constitution thoroughly conserva- 
tive documents. Because the latter was a compact between equal and 
theretofore sovereign states, it was necessarily based on the doctrine 
of equality — of states and (since the people of each, as politically or- 
ganized, were each state) of the citizens of states; consequently, the 
Constitution's framers were forced to minimize colonial thinking. 
But in the Ordinance of 1787 they showed that such thinking was an 
essential part of their mentality — the same men in part, all the others 
of the same social and economic class. In dealing with federal fron- 
tier government they could not rise above the illiberalities of state 
legislation on the border problem of their time. And the greatest of 
all illiberalities, which made possible all the others, were embedded in 
the Constitution. The first, in giving to Congress an unqualified 
power to govern territories while they remained such. The second, 
in imposing upon Congress no duty to admit new states (though the 
cession compact between the Confederation and Virginia, elsewhere 
confirmed in the Constitution, did impose it as respected those formed 
in the Old Northwest, 103 ) but stating only a discretionary power, by 
which Gouverneur Morris, its draftsman, hoped to exclude all others 
(which would necessarily come from "foreign" territory) forever 
from the federal svstem. 104 

102 Of the work of the committee (Jefferson's) David Howell wrote on 
Feb. 21, 1784 from Annapolis: "The mode of government during the Infancy 
of these States has taken up much time, and was largely debated at Princeton 
last Summer" — letter to Jonathan Arnold, Burnett, Letters, 7: 452. Although 
elected a delegate to Congress on June 6, Jefferson did .not leave Monticello 
until Oct. 15, and only reached Congress on Nov. 4, shortly before its adjourn- 
ment to Annapolis. He served steadily until he left Congress on May 11 
preparatory to sailing for France. His committee (with Chase and Howell 
ultimate fellow members) had been appointed on Dec. 18 — Jour. Cont. Cong. 
25: 693 n. Much of Howell's long letter of Feb. 21, 1784 is left unprinted by 
Mr. Burnett; see W. R. Staples, Rhode Island in the Continental Congress, 
478-82 for the full text, or A. B. Hulbert, Ohio in the Time of the Confedera- 
tion, 69-73 for a reprint (not perfect) of all of the matter therein relating 
to the committee's work. 

los Ante at notecalls 177-78 of Sec. II. 

io4 Ante at notecall 79. 



In the spring of 1786 the moves began for a conservative re- 
vision of Jefferson's governmental plan. The process has been above 
reviewed with reference to certain of its provisions, and will now be 
considered in a more general manner. It will be evident that Monroe 
long resisted some of the most extreme views in favor of prolonged 
tutelary government. 

His first ideas that Jefferson's plan needed any conservative re- 
vision may possibly have come to him as a result of serving on a 
committee which studied in the spring of 1785 the specific problem 
of government in the I]linois Country. 1 " 5 In the summer of that 
year he wrote to Jefferson that when government of the western ter- 
ritory should again be considered it would "be determined what 
authority Congress will exercise over the people who may settle with- 
in the hounds of either of the new States previous to the establish- 
ment of a temporary govt, whether they will leave them to them- 
selves or appoint magistrates over them." 106 The conjunction in 
Monroe's mind of the two problems, which were very different, was 

The French had always been ruled by magistrates and command- 
ants ; their petitions were for such — though they learned to pray for 
elected magistrates; they did not know and did not desire our mode 
of government. 1 " 7 Temporarily, an immediate government for them 
of a special type was needed. Still more unfortunate was the merger, 
in the committee work of Congress, of the Illinois problem in the 
general problem of western government. As a matter of fact it began 
in Monroe 's hands, when he became chairman of the committee which 
began the revision of Jefferson's plan that eventuated in the Ordi- 
nance of 1787. 

Monroe began his movement to revise that plan by a motion for 
consideration by the grand committee of its provision for ten small 
states. We have already seen that its report properly attacked that 
very foolish provision, 1 " 8 and that this report was immediately re- 

io? Post ccxcvii seq. 

i<>6 Letter of June 16, 1785 to Jefferson— Writings (Hamilton ed.), 1: S7: 
Burnett, Letters, 8: 144. The committees of which he was a member sub- 
mitted reports— Jour. Cont. Cong. 30: 115, 330-32, 907-9. 

107 Philbrick, The Laws of Indiana Territory. tSOl-1809 (Illinois His- 
torical Collections, 21), ccxvi-ccxxii. 

108 Ante cclxxi-ii. 



ferred to a special committee with Monroe as chairman. The instruc- 
tions to the latter were to report a plan of government "prior to the 
institution of temporary government there" under Jefferson's ordi- 
nance. 10 " In its report, however, the committee completely ignored 
this restriction, submitted a plan for territorial government clown 
to the time of admission as a member state of the Confederation, and 
recommended the repeal of Jefferson's ordinance in toto. 110 Whether 
or not this was a violation of the committee's instructions is possibly 
a question, in view 7 of the Journal's slightly ambiguous form. Seem- 
ingly, and presumably, it was. 111 If so, the action adds to the com- 
mittee's words additional evidence of its antagonistic spirit. 

In the earlier report of the grand committee it had been stated 
to be, in its opinion, "highly expedient that settlements in that 
Country should be formed into governments as soon as possible, and 
admitted into the Confederacy; that order and the true principles 
of government may he established among them, and they become an 
accession of strength to the Union." 112 In Monroe's report there is 
likewise matter that throw's light upon the attitude of the committee 
toward their fellow citizens on the frontier. The nurturing of new 
western states, to become members of the Confederation, could be ac- 
complished, they said, 

only by promoting its [the territory's] settlement and securing to its 
settlers and others who may purchase the soil, the rights of property 
and of personal safety, with the Conditions upon which they shall 
ultimately obtain that important privilege. The Committee there- 
fore think it the duty of Congress to adopt and publish, previous to 
the sale of any part of the said territory, the plan of a temporary 

109 March 27, 1786— Jour. Cont, Cong. 30: 139 n. 1. 

no May 10, 1786— ibid, 251-55. 

in It appears that on March 27, 1786 the committee (Monroe, Johnson, 
King, Kean, and Pinckney) were appointed "on 'Report of the Comee. re- 
specting the Settlers at Kaskaskies['l. To consider and report forms of 
government" etc. subject to the restriction stated in the text — Jour. Cont. 
Cong. 30: 139 n. 1. But on p. 251, the Journal, introducing the report of 
the committee (with no reference whatever to the Illinois Country) refers 
to the committee as those "to whom a motion of Mr. [Nathan 1 Dane was 
referred for considering and reporting the form of a temporary government 
for the western States," without the restriction. See also ibid, 31: 561 n. 1. 
Prima facie, the restriction, and a violation, were present. 

Dane was, with Monroe, a member of the grand committee to which 
Monroe's opening motion was made. Thus far — not later — they were prob- 
ably working wholeheartedly together. 

112 March 24, 1786 — Jour. Cont, Cong. 30: 132; italics added. 



government for said State or States, with the period at which it shall 
expire, and they assume their form and equal Station in the Con- 
federacy. 113 

This was an unqualified statement that the plan they submitted was 
for a government that should continue until admission; in other 
words, to take the place of three stages of government under Jeffer- 
son's plan — that preceding formal self-government, during which 
Congress might, if judged necessary, take measures to maintain peace 
and order; that of "temporary" self-government under the laws of 
an original state, and pending attainment of a population of twenty 
thousand; and that of "permanent" self-government under their own 
constitution from then until the population should equal that of the 
then least populous original state, when the new state should be ad- 
mitted to the Union. The committee, at the end of their report, fur- 
ther explained their attitude. Said they : 

The object for which this temporary government is instituted 
being to protect the persons and rights of those who may settle within 
such districts in the infancy of their settlement, the United States look 
forward with equal anxiety to the period at which it shall cease and 
they be admitted, agreeably to the Condition of the Acts of Cession 
into the Confederacy. 

This shall be the case so soon as they shall respectively obtain a 
common interest in its affairs, with such mature age and strength as 
to be able to act for themselves, the highest and most satisfactory evi- 
dence of which is, the number of inhabitants they . . . contain. . . , 114 

These two committee reports make it plain that the revisers had 
a low opinion of the civic virtues of the western settlers, and proposed 
to take whatever time might be necessary to educate them not only 
to the practice of law and order as the revisers understood those 
words, — which alone was surely a great undertaking — but also to 
the point of subordinating their purely individual interests, which 
made them frontiersmen, to "a common interest" in the Confedera- 
tion that would make them nationalists. (A failure to see that by the 
fact of leaving their several states and living far-removed together 
they were essentially nationalists was one blind spot of the Ordi- 
nance's framers. ) Monroe's report also hinted the possibility of 
"conditions" that might be imposed upon the "privilege" — which 

us May 10, 1786 — ibid. 251; italics added. 
114 Ibid. 255; italics added. 



in truth was a legal right created by formal action of sovereign 
states — of admission to the Union. The quoted passages of the two 
reports are a perfect example of the patronizingly ministrant attitude 
toward the frontiersmen of those who did not wander. 

In order to understand references to the changes made at differ- 
ent dates in the governmental plan, it will be useful to enumerate- 
the successive reports involved. Two reports (of May and July 1786) 
were made by the revising committee while Monroe remained its chair- 
man; a third report, manifestly prepared during that period but 
which he was unwilling to sponsor, was presented (in September 1786) 
immediately after he was dropped in a reconstitution of the com- 
mittee. After this there exists a print of May 9, 1787 which, with 
manuscript notations, shows the results of debates, earlier and later, 
of the preceding "third report" down to July 9; this paper will for 
present purposes be called the fourth draft. And finally there are 
printings showing the forms in its three readings on successive days 
of Nathan Dane's draft of the Ordinance of 1787. 115 

Certainly the insertion of one provision, 116 possibly the insertion 
of a second, 117 very probably the deletion of a third, 118 entered into 
the causes of Monroe's retirement. But only the last directly affected 
the character of the territorial government while it endured; and 
consequently one must say that, with the probable exception of that 
provision, he had formally sponsored and presumably approved 
every feature of the governmental plan in the Ordinance of 1787 ; 
the strictly governmental or administrative plan of the earlier re- 
ports being carried over, unaltered in substance, into that Ordinance. 

11 5 These records will be found as follows: Monroe's first report — May 
10, 1786, Jour. Cont. Cong. 30: 251-55; his second report— July 13, 1786, ibid. 
402-6; the third (or Johnson report) — Sept. 19, 1786, ibid. 31: 669-72; the 
"fourth draft"— ibid. 32: 281-83, see 275 n. 2 and 281 n. 1; Dane's two printed 
drafts of July 11 and 13, 1787— ibid. 314-20, 334-43. 

us The substitution of King's for Jefferson's population formula for ad- 
mission to the Confederation — ante cclxxv-vi seq. 

ii" The condition stated and commented upon ante at notecall 78; but 
one is left in doubt regarding that because of his own reference to possible 
conditions stated in the text preceding notecall 113. 

us The population requirement for organization of a general assembly 
was left blank in Monroe's first report (May 10, 1786 — Jour. Cont. Cong. 
30: 253), was made 500 in the second (July 13, ibid. 31: 671) and became 
5,000 in the report as ordered printed on May 9, 1787 (ibid. 32: 282), and 
so remained in the Ordinance of 1787 (July 11, 1787 — -ibid. 316, unchanged 
when passed July 13). 



And it was this plan which, because of its illiberalism, made the 
Ordinance the very antithesis of Jefferson 's. 

There were certainly, in Monroe's second report as compared 
with the first, not merely clarifications of phraseology 119 but im- 
provements of substance; 120 notably the elimination of the governor's 
power to dissolve the general assembly, which, however, was restored 
in the fourth draft and carried therefrom into the Ordinance of 1787. 
Powers to convene and prorogue were given to him from the begin- 
ning, and also of veto (though that was omitted, presumably by inad- 
vertence, in the third report). Liberalism was evidenced in the sec- 
ond report by conceding the right to representative government when 
the territory should contain five hundred free white male adults. 

Nevertheless, nearly every change made in the first report was 
for the purpose of making congressional control of the territory more 
direct and close, or of increasing the governor's powers. A legislative 
council was established as one house of the general assembly, ap- 
pointed by the united states in Congress (after 1789 by the president 
with consent of the Senate), with tenure "during pleasure." The 
secretary was required to transmit quarterly to Congress (after 
1789, to the president) his record of all official acts and proceedings, 
executive and legislative. Pending organization of a general assembly, 
the governor was empowered to lay out counties and lesser territorial 
divisions and to appoint all officials of such divisions deemed neces- 
sary for the preservation of peace and good order. He was further 
empowered to act directly on evidence offered to him of the population 
required for transition to representative government, without refer- 
ring the same to Congress. In place of manhood suffrage, prescribed 
in Jefferson's plan, Monroe's first report required citizenship in one 
of the united states and a freehold estate in fifty acres of land (or 
the latter with a year of residence for aliens) ; and the second re- 
quired for representatives, citizenship or three years of residence 

iif One extraordinary example is that relating to restrictions upon the 
powers of the general assembly over lands within the territory — first re- 
port, ibid. 254; omitted in second, 405; and third, 672, by Rufus King's mo- 
tion, 406 n. 1. 

i-o The first report recommended an executive council which the governor 
was bound to consult, though their anticipated relations were such that the 
secretary must enter in the governor's presence the council's advice, and in 
the council's presence the governor's reasons for disagreements with advice 
given — ibid. 252. This council appeared in no later report or motion. 



and fee simple ownership of two hundred acres of land. No plan 
preceding Dane's fixed any property qualifications for the gov- 
ernor, councilors, or judges, for the first of whom he prescribed a 
freehold of one thousand, and for the others of five hundred acres. 
The very liberal population requirement for transition to representa- 
tive government, fixed in Monroe's second report at five hundred 
"free [white] male" adults, was struck out in the third report and 
fixed in the fourth at ten times this figure. And although his first 
report gave the right, after establishment of representative govern- 
ment, to keep in Congress a delegate entitled to debate, though not to 
vote (this provision being taken from Jefferson's ordinance), it was 
omitted in all later drafts until Dane restored it. 121 

It will be noted that only one distinctly liberal change was made — 
to deprive the governor of the power of dissolving the assembly — 
and that was not allowed to stand. Only one distinctly illiberal 
change was reversed — that which denied the territory a delegate in 
Congress. The proceedings constitute a striking record of consistent 
reaction when contrasted with the state constitutions of the Revolu- 
tionary era. There is nothing, moreover, that indicates any division 
of opinion in the committee's work, with reference to the character 
of government, between such men as Monroe and Charles Pinckney 
on one hand and Rufus King and William Samuel Johnson on the 
other. The fact is, of course, that either dislike of frontiersmen or 
fear of the future political power of the West, or both those attitudes, 
were common to conservatives of all sections of the East. The differ- 
ence between men like Jay and King on one hand and men like Wash- 
ington, George Mason, and Jefferson on the other was not in appre- 
ciation of these political problems, but in what the latter regarded 
as the solution. They believed that fair treatment of the West as an 
equal would save it and the Union ; that was a constant theme in 
Jefferson's letters. What he feared was that both might be lost by 
a selfish disregard of western sentiment and rights, as by consent to 
a closing of the Mississippi. 122 Washington's position was much the 
same. Many letters from him on the dangers can be quoted, but many 

i2i In this Dr. Cutler played a part, post n. 330. 

122 Letters to Monroe of July 9 and Aug. 11, 1786 — Writings (Ford ed.), 
4: 246-48, 262-63; to Madison, Dec. 16, 1786, Jan. 30 and June 20, 1787 — ibid. 
333-34, 363-64, 391-92. Compare statements of Roger Sherman, Madison, and 
Mason in the Federal Convention, Farrand, Federal Convention, 1: 534, 
578-79; 2: 454. 



others express a belief that the creation of better trade routes to the 
West would hold it, and to this he therefore long devoted all his free 
time. 123 

The whole matter had been long debated in Congress, probably 
endlessly outside, for several years, and no doubt general attitudes 
were well settled before the work of Monroe's committee began. For 
at least a year before that Monroe himself had evidently regarded 
as open to question the period during which self-government should 
be postponed. As he truly prized nonpartisanship and frankness, 
he had expressed his views freely to Jefferson, 124 and it was in the same 
spirit that within a month after he began his work of revision he in- 
vited Jay to meet with his committee for consultation, stating with 
astonishing but admirable candor that the first question before them 
with respect to government was, ' ' Shall it be upon Colonial principles 
... or shall they be left to themselves . . . ?" 125 Within three weeks 
after that his first report showed the conclusion reached by the com- 
mittee, and he wrote to Jefferson : 

the plan of a temporary gov'nt to be instituted by Congress and pre- 
served over such district until they shall he admitted to Congress is . . . 
reported, the outlines are as follows. Congress are to appoint as 
soon as any of the lands be sold a govr., Council, Judges, secretary to 
the Council, and some other officers ; the govr. and Council to have 
certain powers [a remarkable understatement] untill they have a cer- 
tain number of inhabitants, at wh. they are to elect representatives 
to form a gen. assembly to consist of the govr. and council and sd 
house of representatives. It is in effect to be a colonial gov'nt similar 
to that wh. prevailed in these States previous to the revolution, with 
this remarkable and important difference that when such districts 
shall contain the number of the least numerous of the "thirteen 
original States for the time being" they shall be admitted into the 
confederacy. The most important principles of the act at Annapolis 
are . . . preserv'd in this report. It is generally approv'd of. 126 

128 "The great object ... is to connect the Western Territory with the 
Atlantic States; all others, with me, are secondary" — letter to Edmund 
Randolph, Aug. 13. 1785, Writings (Fitzpatrick ed.), 28: 218; see also 27: 475, 
483, 488-89; 28: 4, 64-65, 72, 79, 204-5, 207, 231. 291, 460. 

m Ante at notecall 106. 

^■">The invitation, of April 20, 1786, is in Burnett, Letters, 8: 342. 

i2fi May 11, 1786— Burnett, Letters, 8: 359-60. He was not here referring 
to action by the Annapolis convention, which had not yet met, and therefore 
must refer, as Mr. Burnett assumes {The Continental Congress, 652), to 
action taken at Annapolis (ante n. 102) on Jefferson's ordinance. But the 
statement is most extraordinary. What had Monroe, in his first report of 



Later, after submitting* his second report to Congress, he wrote 
again : 

It has been propos 'd & supported b} r our State to have a Colonial 
govt establish 'd over the western districts & to cease at the time they 
shall be admitted into the Confederacy ; we are fully persuaded will 
be beneficial to the settlers & to the U. S. & especially those to whose 
frontiers such establishments form'd [would form] an immediate 
barrier. 127 

The accuracy of Monroe's description of the government he 
recommended, as "colonial," is manifest. Some other members of 
the Congress so described it ; 128 probably all did, and none could have 
challenged the term. Nevertheless, as Professor Evarts Greene put it, 
Americans have preferred to use the term "territorial." 129 

May 10, preserved of Jefferson's ordinance? Not a jot of its plan of actual 
government; two only of the seven fundamental conditions which (at least) 
Jefferson wished to have made interstate agreements — ante n. 53, post n. 370. 
Little, therefore, beyond the provisions that states should be formed from 
the Territory and ultimately admitted into the Union. These are the only 
principles explicitly mentioned in his letter, and nothing else appears to 
justify his employment of the plural of the word. This would make Monroe 
dishonest if self-government were one of "the most important principles" 
agreed upon by Jefferson's committee at Annapolis. But many persons — 
possibly including Jefferson, post cccv seq. — did not so regard it. Hence, 
Monroe's letter must be taken as showing, (a) that he was of that group; 
(b) that he was reduced to asking Jefferson to take comfort from his reten- 
tion of principles as to which neither he nor Jefferson had any freedom of 
action whatever. 

i -'? Letter of July 16, 1786— Burnett, Letters, 8: 404; Writings (Hamil- 
ton ed. ), 1: 140-42. In reference to troubles in his committee — ante cclxxxix — 
he added: "this hath not been decided on & hath only been postpon'd in 
consequence of the inordinate schemes of some men above alluded to as to 
the whole policy of the affairs of that country." 

!- 8 On Sept. 28, 1786 the Rhode Island delegates reported to the governor 
of that state: "an ordinance for the establishing a colonial Government in the 
western territory is nearly completed" — Burnett, Letters, 8: 471. 

129 He referred to the later ordinance's "provisions for colonial or, as 
Americans prefer to call it, territorial government," adding that the govern- 
ment established (and this after the end of the first administrative stage — 
of nonrepresentative government.) was one closely resembling that of an 
English royal province, more particularly that of Massachusetts under the 
charter of 1691, with Congress taking the place of King. ... So far, then, as 
strictly colonial government is concerned, the ordinance was not strikingly 
original" — E. B. Greene, Foundations of American 'Nationality (1922 ed.), 
577. Bancroft used the phrase "colonial dependency" — History (last revi- 
sion), 6: 281. It is interesting that Rufus Putnam in 1783 used the phrase- 
ology, "distinct government (or Colloney of the United States)" — R. Buell, 
Memoirs of Rufus Putnam, 215. Recent historians have increasingly used 
the word. Professor Paxson has used it — ante n. 2. He also cites B. A. 
Hinsdale's book as The Old Northivest. The Beginnings of our Colonial 
System (1888), but I have not found that title in any of the publishers' 



What was it that the revisers of Jefferson's plan desired"? Their 
actions and their letters make plain that they wished a government 
which would, in the words of Richard Henry Lee, insure "more per- 
fect security of Peace and property among the rude people who 
[would] probably be the first settlers there," one "more tonic" than 
the governments of the Atlantic states as they then were. 130 They 
also wished a government so closely controlled by Congress, and of 
such a character, that it would give assurance of safety against fron- 
tier defection. It was the very purpose of Monroe's committee from 
the beginning — certainly of some members, if not Monroe — to repeal 
Jefferson's ordinance 131 and establish a stronger government that 
would rule, and not be a creature of, the border population. To a large 
extent they attained these two objectives. By provisions assumed to 
bind the original states (and so Congress), the territories, and the new 
states formed therefrom, they had purportedly put fundamental 
rights of person and property beyond all interference. They had 
also framed a highly centralized government. 

trade lists of books published. Justin Winsor used the title: The Westward 
Movement: the Colonies and the Republic . . . (1897). One finds the word 
used in a charge to a grand jury in Mississippi Territory in 1800 — American 
State Papers, Miscellaneous, 1: 238; likewise in a communication to the 
Attorney General of the United States from some acquaintance in Louisiana 
Territory in 1805 — Carter, Territorial Papers, 13: 326. Governor St. Clair 
repeatedly referred to the Northwest Territory as a colony, particularly in 
an able letter to the Secretary of the Treasury in which he made clear 
(anticipating arguments of Webster) that it was "not a part of the United 
States" (united states), but "a dependent colony" thereof — W. H. Smith, 
St. Clair Papers, 2: 69, 70, 379-84; Carter, Territorial Papers, 2: 523. It seems 
highly probable that "colony" and "colonial" were common usage during at 
least two or three decades after passage of the Ordinance. Chief Justice 
Taney, in his opinion in the Dred Scott case, contrasted "colony" and "terri- 
tory" on the doubly unsound basis that the former word connoted unre- 
strictedly arbitrary power in the suzerain, and that Congress did not hold 
such power over the territories — 60 U.S. 446-47. C. E. Carter has recently 
briefly sketched "Colonialism in Continental United States" in The South 
Atlantic Quarterly, 47 (1948): 18-28. I understand that such language was 
long taboo in Washington as respected official publications. For E. S. 
Pomeroy's recent monograph see post n. 197. 

iso Letter of July 30, 1787 to William Lee— Burnett, Letters. 8: 629. In 
another of July 15 to Washington he wrote: "it seemed necessary, for the 
security of property among uninformed and perhaps licentious people as 
the greater part of those who go there are, that a strong toned government 
should exist, and the rights of property be clearly defined" — ibid. 620. 

iai Though this fact, and the purpose, are clear on the record I have 
noted only one statement elsewhere, and that only on the fact alone: "It 
was the purpose of the new movement to supp'.ant Jefferson's ordinance of 
of 1784" — Justin Winsor, Westward Movement^ 281. 



How extreme their ideal was can be judged by the statement of 
Nathan Dane : ' ' We wanted to abolish the old system and get a 
better one for the government of the country, and we finally found 
it necessary to adopt the best system we could get." 132 Of the sev- 
eral restraints imposed by Jefferson's ordinance, for the protection 
of the Confederation and of federal interests, upon the territorial 
government which it created there was only one which Dane did not 
carry over into the Ordinance of 1787. 133 That was the one which 
required the government in both its temporary and permanent forms 
to be "republican." 134 The Ordinance did require that the constitu- 
tion framed for a new state at the time of admission to the Union 
should be republican. 135 Moreover, in the preamble to the compact 

132 Letter of July 16. 1787 to Rui'us King— C. R. King, Rufus King, 1: 289. 

133 See post n. 370. 

134 Compare Jour. Cont. Cong. 26: 277 and 32:341. See ccliv ante. Between 
power to choose laws of an original state under which to live, and even to 
alter these, and the requirement that government be republican there was a 
conceivable inconsistency. Clearly, Jefferson considered it negligible; but 

134 Compare Jour. Cont. Cong. 26: 277 and 32: 341. See ccliv ante. Between 

135 It added, though this was outside the compact of Virginia with the 
Confederation: "and in conformity to the principles contained in these 
Articles" — article 5, Jour. Cont. Cong. 32: 342. This requirement was not 
in Jefferson's ordinance when passed — ibid. 26: 277-78; but in Howell's letter 
cited ante n. 53, at 480, he stated as approved in committee the requirement 
that the new state's constitution "be agreeable to the spirit of the Confedera- 
tion." And Jefferson's ordinance actually made admission subject to the 
proviso that "the consent of so many states in Congress is first obtained as 
may at the time be competent to such admission" — Jour. Cont. Cong. 26: 278. 
In short, nobody seemed to realize that no actual condition could be imposed 
other than what was stipulated in Virginia's deed of cession. See ante n. 54. 

As regards the condition of "republican" government, it must be remem- 
bered that Jefferson's ordinance called the territorial organizations "states," 
as they would be called in the language of political science; and this was 
regular usage in state papers of the 1780's — ante ccliv-vi, clxxii-iii. They all 
stated this condition; and, remembering that none of them assumed a pre- 
admission stage of preparatory territorial government (ante at notecall 
100), it is clear that one requirement covered all stages of government. The 
compact created by acceptance of Virginia's cession deed contained two con- 
ditions only; that the territory be organized into "Republican States and 
admitted members of the foederal union, having the same rights ... as 
the other States," and one fixing their number (later altered, ante n. 64). 
Jefferson had signed Virginia's deed, knew that the conditions in his ordi- 
nance were not in the cession compact, therefore wanted then made com- 
pacts — ante n. 54. 

Looking at the matter as of 1784, and at the seven conditions in Jeffer- 
son's ordinance listed ante ccliv-vi, it would seem that one of them (no. 2 
as there listed) constituted no restraint upon the territorial legislature, 
was a mere declaration of policy, and may be disregarded. Of the others, 
two (nos. 1, 7) were explicitly limited to the pre-admission period; the other 
four could of course be effective by congressional action only during that 



there is an ambiguous reference to "these republics" which might 
refer either to the territory or to the future states creatable therefrom. 
Nevertheless, it appears a possibility that the revisers of Jefferson's 
plan did not wish to commit themselves, as regarded the territory, to a 
republican standard ; and, waiving the question whether the territorial 
government provided for in the Ordinance was republican, their rea- 
son probably was that part of them had wanted a government to 
which that doubt would be even more applicable. 136 

What was wanted, by some of the revisers and by some other 
members of Congress, seems to be plain enough : a government by 
"magistrates" or commissioners named by that body, probably 
charged with duties broadly stated and possessing powers not specifi- 
cally denned. Those who held this view had made a stand for it in 
1784 just before Jefferson's report was approved. It was moved. 

period, although under the Constitution they actually bind all members of 
the federal Union. 

As Congress received in 1789 absolute power over the territories, condi- 
tions set on their governments would thereafter have served no purpose. 
As regards conditions supposedly imposed on states, none which would really 
affect their equality with other states are valid; but a condition ostensibly 
placed on a particular state may happen to be one which in fact binds states 
because of their relation to the federal system, and such a "condition" is 
valid — not as a condition, but as a principle of constitutional law correctly 
stated. As said above this was true of four of Jefferson's conditions; it 
would likewise have been true of two more (nos. 1 and 7) had he not limited 
them to the period of territorial government; and even the last remaining 
"condition" (no. 2) was certainly made a leading principle of the Constitu- 
tion by the Civil War. The recognition of these as basic principles of fed- 
eralism illustrates Jefferson's statesmanship. 

136 Justin Winsor seems to have thought that the Ordinance assured the 
territory a republican government, and also that this was strengthened by 
the "provision which allowed [rather, required], as was permitted in the 
ordinance of 1784, the adoption of the laws of any of the older states" — 
Westward Movement, 287. This is reasonable, and is possibly the explana- 
tion. Speaking strictly, Mr. Winsor's suggestion is not beyond question. 
The Ordinance of 1787 permitted adoption of laws from one or another state, 
selectively; Jefferson's gave permission to choose the "constitution and 
laws" (seemingly, all laws) of any one of the original states. The latter 
would have assured a republican government — at least in 1784; it is quite 
possible that the former would not. But of course in actuality what Mr. 
Winsor said was true. 

The fact that the guaranties given in the Constitution to the states were 
not given to the territories was the plainest evidence (though many other 
things were also evidence) that the Constitution related to a federal sys- 
tem of which the territories were no part. In only twenty-six words it" 
referred to them — as something apart, and as "property" — for Congress to 
govern. The federal government would protect them against invasion or 
domestic violence; it could insure them a republican government. But must 
it? In Thomas Hart Benton's opinion they had, up to 1857, "never been 



namely, "That till such time as the settlers . . . shall have adopted 
the constitution and laws of some one of the original states . . . for a 
temporary government, the said settlers shall be ruled by magistrates 
to be appointed by . . . Congress, and under such laws and regula- 
tions as . . . Congress shall adopt." This motion was decisively de- 
feated. 1 * 7 But it was under these circumstances that another amend- 
ment was adopted, namely : ' ' That measures . . . necessary for the 
preservation of peace and good order among the settlers . . . until 
they shall assume a temporary government, as aforesaid, may, from 
time to time, be taken by . . . Congress." 135 As already said, the limita- 
tion of such governmental action to occasional measures taken for a 
limited purpose indicates the view of members in extreme opposition 
to those desiring rule by magistrates. The view of the former origi- 
nally prevailed. 

The views of the conservative group were not abandoned. Oppor- 
tunities for their expression arose in considering the government of 
the Illinois Country. They influenced Monroe, who led in abandon- 
ing Jefferson 's governmental plan ; they influenced Nathan Dane, 
who followed Monroe in that work and had effective control of the 
final stages of drafting the Ordinance of 1787 ; and through both of 
these men they influenced the character of that enactment. In the 
petitions that came to Congress from the French settlements the 
prayers and complaints emphasized the office of their magistrates. In 
all discussions of their needs in Congress it was ' therefore at first 
assumed that a magisterial svstem must be the basis of anv relief 

governed on republican principles" — Bred Scott Case, 26-27. Certainly 
Louisiana (ibid. 55-56) and Florida (ibid. 72-73) had governments despotic 
in principle; and one need not consider California or overseas "possessions." 
Speaking of the Articles of Confederation, the Ordinance of 1787, and the 
Constitution, the Supreme Court — in Downes v. Bidwell (1900), 182 U.S. 
240, 250 — observed: "in relation to these three fundamental instruments that 
it can nowhere be inferred that the territories were considered a part of 
the United States." Compare Governor St. Clair in W. H. Smith, St. Clair 
Papers, 2: 378-84; Webster (arguendo) in Amer. Insur. Co. v. Canter (1826), 
1 Pet. (26 U.S.") 511; colloquy of Webster and Calhoun in 1849 quoted in 
part ante n. 233 of Sec. II 

is* "On the question to agree to this amendment" the yeas are given 
as 6, noes 1, and three states divided; but the question actually voted on 
was: Shall the matter stand as it is? Roger Sherman and James Wadsworth 
of Connecticut gave the one vote for the amendment; the states whose rep- 
resentatives were divided were New Hampshire, New York, and Rhode Island. 
April 21, 1784 — Jour. Cont. Cong. 26: 259-60. An attempt to secure recon- 
sideration of this vote on April 23 was defeated — ibid. 274-75. 

is 8 Ibid. The vote was not recorded. 



afforded them. This was a sound premise. Though Congress, had 
it realized the role of priest and commandant in their administrative 
system, could not have sent them such officials, it could have supplied 
the essence of the system under the name of magistrate in our politi- 
cal sense of that word, or under the name of a commissioner; and 
this is precisely what congressional plans contemplated down to the 
enactment of the Ordinance of 1787. In dealing in the two years pre- 
ceding its adoption with petitions for the establishment of effective 
government in the Illinois Country, the following actions have inter- 
est in connection with the assertions made at the beginning of this 

A committee report made in February 1785 recommended simply 
that Congress send to Kaskaskia a commissioner "charged to use his 
best endeavours to suppress those disorders and irregularities of which 
the said Inhabitants complain. And that in the exercise of his Author- 
ity" — not otherwise defined — "and the administration of justice he 
pursue the mode which he may judge the best calculated to quiet the 
Minds of those people and secure their attachment to the foederal 
government." 1 39 This recommendation being referred to another com- 
mittee, it reported what could have been a very effective temporary 
plan if kept simple, but which was ruined by impractical elaboration. 
It displayed a notable thirst for information respecting the Illinois 
Country coupled with an entirely logical inappreciation of the diffi- 
culties of its problems. It provided that a commissioner be sent 
thither for three years ; imposed upon him duties, with respect to its 
past problems and current affairs, whose performance would have 
required the diligent attention of half a dozen able men ; required 
him to do inconsistent things ; required him to do impossible things ; 
but assumed him to be endowed with talents (including a knowledge 
of French, and to some extent of Virginia law) adequate to the per- 
formance of all these obligations. Heavj^ duties were also placed 
upon him that lay outside ordinary governmental functions. Within 
these, the report assumed him to possess legislative powers seemingly 
unlimited save as respected personal rights and personal property ; 
gave him large judicial powers ; assumed in him almost unlimited 
executive powers. There were no provisions for self-government ex- 

139 Report of Feb. 15, 1785; committee — Hardy, C. Pinckney, Benson. 
Williamson, Howell; Jour. Cont. Cong. 28: 67-68, also in I.H.C. 5: 370. 



cept that elected magistrates were to try civil controversies not affect- 
ing the title to land and were to sit with the commissioner in the 
trial of criminal cases ; and that local officials, appointed by him with 
the advice and consent of the magistrates, were to execute "their 
[judicial?] decrees." The first report had recommended the 
stationing of federal soldiers in the settlements; this report, instead, 
charged the commissioner to "arrange, officer and command" a 
militia. 140 

All this was more or less in accord with what the French settle- 
ments had been accustomed to in the past in the way of government, 141 
and if adequate means had been provided for performance of the tasks 
assigned, the plan might have served for a brief time a useful pur- 
pose. A population of predominantly foreign customs called for 
special treatment, as Congress later realized in the case of Louisiana, 
for which it made special provision. 142 The fundamental problem of 
the Illinois Countiy differed, too, essentially from that of the Ameri- 
can border settlements in that the French wanted government ; indeed, 
wanted to be governed paternally. However, one duty of the com- 
missioner was to "explain to the inhabitants of the said district, such 

I 40 Report of March 14, 1785; committee — Livingston, McHenry, Howell, 
Read, Monroe; report in Jour. Cont. Cong. 28: 155-57 and I.H.C. 5: 371-73. 
The election of magistrates was derived from Virginia's act of Dec. 9, 1778 
by which the County of Illinois was created. That very simple enactment 
would have been a useful model. The governor appointed a county lieutenant 
"or commandant in chief," who appointed at will "deputies, militia officers, 
and commissaries." But "all civil officers to which the said inhabitants 
have been accustomed, necessary for the preservation of peace and the 
administration of justice" were to be elected — Hening, Statutes, 9: 553. At 
that time in all other counties county judges were appointed by the governor 
— ibid. 5: 489; likewise, justices of the peace — ibid. 9: 117. All this is de- 
rived through A. C. Boggess, The Settlement of Illinois. 1778-1 880 (1908), 
9, 15. 

!4i See Philbrick, Laws of Indiana Territory {I.H.C. 21), ccxii-ccxxii. 

142 This is what had been done by Great Britain in the Quebec Act — 
V. Coffin, The Province of Quebec and the Early American Revolution: a 
Study in English-American Colonial History (1896), and, more summarily, 
"The Quebec Act and the American Revolution," in Amer. Hist. Assoc. 
Report, 1894: 275-76. Mr. Pease renewed the old-time emphasis upon the 
fact that the Quebec Act established (on paper) Catholicism in the Northwest 
— T. C. Pease, "The Ordinance of 1787" (1937), Mississijjpi Valley Historical 
Review, 25: 175. Quite modern in expression, at least, is Albert Jay Nock's 
view (which he assumed was shared by our ancestors and incited them to 
revolution) that the proclamation of 1763 was an attempt by Great Britain 
"to limit the exercise of the political means in respect to rental values" — 
that is, to bar land speculation (American, at least) from the Northwest: 
Our Enemy, The State (1935), 115-28. 



. . . proceedings of . . . Congress, as respect the same, and endeavour 
to form their habits for the reception of a free republican govern- 
ment. ' ' It should have been entirely clear that the only way to learn 
self-government was through an opportunity to practice it. 

James Monroe was a member of the committee that submitted the 
foregoing report, but it would seem he did not like it, for he arrested 
by motion immediate action of the nature proposed, and the ultimate 
effect was to prevent it altogether. It would seem also that "William 
Samuel Johnson agreed with him, for they were two of the three 
members of a committee from which came the motion in question. He 
probably did object to the plan's indefiniteness ; nevertheless his alter- 
native was probably offered for tactical reasons. Monroe's objection 
may have been to the plan, for he suggested an alternative ; or it may 
have been to the likelihood that Arthur Lee would be the commissioner. 
Since the stated objection was a rather absurd one, which Congress 
ignored, and belief in which is nowhere indicated in his letters, it 
seems probable that he was primarily motivated by a desire (for pub- 
lic, not personal, reasons) to bypass Lee, and in this — if it was his 
intent — he succeeded. 143 

In the report above described, the first recommendation relating 
to the proposed commissioner had been "that ... he be invested with 
full power to examine into the titles and possessions of those Inhabi- 
tants of the [Illinois] country 144 whose rights were designed to be 
saved by the treaty entered into with them by Genl. Clarke" in 1779, 
and which had been guaranteed to them by the compact between 
Virginia and the other united states. 145 Monroe's committee, having 
occasion to report on matters relating to commissioners charged with 
making Indian treaties that summer at Vincennes, went out of their 
way to remark: that "when they consider the very important inter- 
ests which the States have in the Western Country . . . your Committee 
take the liberty to suggest" that "the origin and extent" of the in- 

14; s See his remarks and Jefferson's on Lee in Monroe to Jefferson, April 
12, 1785 and Jefferson's reply — Burnett, Letters, 8: 91, 92 n. 16. Lee was 
elected but he resigned ten days after Monroe's motion was made — Jour. 
Cont. Cong. 28: 394 n. The reason given by him was rheumatism. 

144 This task alone later required the time of two land commissioners at 
Kaskaskia for several vears. See Philbrick, Laivs of Indiana Territory 
(I.H.C. 21), lxv-c. 

145 On the misconceptions that these loose words permitted see ante at 
notecalls 102 and 103 of Sec. III. 



habitants' rights "be fully ascertained''" by the treaty commissioners 
"during their residence" at Vincennes, by obtaining from them 
"authentic documents thereof." Of the ignorance in Congress of 
western geography and conditions in the Illinois Country which these 
recommendations illustrate Monroe was apparently not so acutely 
aware as he should have been, and as some others were. 146 But he must 
have realized the difficulty to some extent, for a desire to lessen it was 
seemingly the underlying reason for his western trip a few months 
later. 147 The second resolution of Monroe's report was an equally 
striking illustration of this same ignorance. It was: that "no gov- 
ernment being as yet established over the said Inhabitants and settlers 
upon the principles of the resolutions of the 23d of April 1784" (that 
is, Jefferson's ordinance), the treaty commissioners "advise and 
assist them in forming a temporary government upon the principles 
of said resolutions." To do this, it should be remembered, would 
have required adoption by these French people of the constitution and 
laws of some one of the original states under which they wished to 

The first of Monroe's recommendations was adopted. The second 
was not. 148 This might mean that Congress did not consider the 
Illinois settlements ready for "temporary" government in the sense 
of that phrase as used in Jefferson 's ordinance ; or it might mean only 
that the duty suggested was not one that the treaty commissioners 
should undertake ; both views would have been sound, and as above 
suggested, the proposal was probably not seriously made. 

At any rate, this consideration of the Illinois problem seems to 
have raised doubts in Monroe's mind as to the merits of Jefferson's 
plan even for the Northwest. It was shortly after these events, and 
in advance of the western tour (which increased his doubts) that he 
expressed to Jefferson his uncertainty as to "what authority Congress 

146 "The government of the settlements on the Illinois and Wabash is a 
subject very perplexing in itself; and rendered more so by our ignorance of 
many circumstances on which a right judgment depends." Madison to Jeffer- 
son, April 23, 1787— Burnett, Letters, 8: 589; Writings, 2: 357; Papers, 2: 639. 

1*7 He was not one of the commissioners to negotiate a treaty with the 
Indians on the Ohio in Sept. 1785 but planned to be at that place — letters 
to Jefferson of Aug. 15 and 25 (on which day he started from New York) — 
Burnett, Letters, 8: 187, 202. 

148 Report of May 3, 1785 — Jour. Cont. Cong. 28: 330-33, 461-62. An 
attempt to revive the report of March 14, 1785 — ante n. 140 — which Monroe 
had pushed aside was made in Dec. 1785, but failed — ibid. 28: 907-8. 



will exercise over the people who may settle within the . . . new 
States previous to the establishment of a temporary govt, whether they 
will leave them to themselves or appoint Magistrates over them.'" 14 '' 
It will be noted that his doubt was as to whether Americans on the 
border should have "magistrates"; if the surmise offered above be 
sound, he was satisfied that the French settlements should. Also, it 
will be noted that at this time he was still clinging to Jefferson's two 
stages of pre-admission government. We have seen that he returned 
from the West "with a conviction of the impolicy of our measures 
respecting" it, particularly the provision for small states, 150 and that it 
was left to him to begin the reform of Jefferson's plan. We have also 
seen that when his committee was appointed it was charged with 
consideration of new memorials from Illinois as well as with the gen- 
eral problem of territorial government. 151 Consideration of the lat- 
ter by his own and succeeding committees eventuated in the adoption 
of the Ordinance of 1787. No official record of attention to the other 
subject appeared until Monroe, in August 1786, submitted a recom- 
mendation that the inhabitants of Kaskaskia be informed that Con- 
gress had under consideration a governmental plan "for the said 
district" and that its adoption would be delaj^ed no longer than its 
importance "and a due regard to their interest" might require. 152 
This plan was the inchoate Ordinance of 1787. 

The situation, then, was as follows: (1) Complete repeal of 
Jefferson's plan had long since been recommended by Monroe. In 
particular, its first stage of "temporary" representative government, 
under laws the settlers could choose, but did not enact, was gone ; 
Monroe had decided that the American settlers of the Northwest were 
not to be "left to themselves," but to be governed, until fit to make 
their own laws, by Congress. (2) He had also decided that both 
the American border and the Illinois Country could and should be 
governed in the same manner. And (3) since there is every reason to 
believe that he considered a strong government essential for Kas- 
kaskia (even though he may well have considered the commission 
government proposed the preceding year to be too loosely drawn to be 

i*9 June 16. 1785 — Writings (Hamilton ed.), 1: 87; Burnett, Letters. 8: 

iso Letter to Jefferson, Jan. 19, 1786 — ibid. 285. 

i5i Ante n. 111. 

152 Aug. 24, 1786— Jour. Cont. Cong. 31: 563. 



safe for either party), we can rest assured that he considered his 
general governmental plan both definite and strong. 

It was not, however, strong enough to suit Nathan Dane ; and 
here we reach the end of this digression on matters of the Illinois 
Country. 153 Memorials continued to pour thence into Congress, un- 
affected by the reassurance given by Monroe's report; for the 
old abuses continued unabated. Madison found them "infinitely em- 
barrassing" 154 — and that throws light on a report by him, shortly 
to be mentioned. If Monroe did not feel so he must have had a great 
pride of opinion. In the spring of 1787 two of these petitions were 
referred to a committee of three, of whom Madison was one and Dane 
soon became another. Their report, written by Dane, was based on 
the belief that "Congress ought without delay to provide for the ad- 
ministration of Government and for forming some additional laws in 
those settlements." It was merely a revision, but an excellent one, 155 
of the Livingston report of 1785 which had recommended commission 
government. It somewhat increased the power of the local magistrates 
and the application of local law and custom. 150 By one new provision 
the commissioner and a majority of the magistrates were empowered 

iss post cccxxvii-viii. 

is* Letter of April 22, 1786 to E. Randolph — Burnett, Letters. 8: 588. 
Mr. Burnett remarks in his preface to the volume: "It was probably a re- 
newal of these complaints, more than anything else, that induced Congress 
once more to give its attention to the form of a system of government for 
the western territory" — ibid. xli. 

155 with admirable good sense Dane omitted: (1) the duty to "cause to 
be surveyed every tract of land . . . claimed or possessed," which was an 
utter impossibility in those years; (2) the inconsistent duties to "adjust 
interfering claims among the settlers" and (3) to "assign Lands as well to 
those as to others who shall migrate thither"; (4) the duty to "endeavour 
to form their habits for the reception of a free republican government." 
And finally, (5) the commissioner was relieved of a major portion of the 
immense burden of making "early and accurate returns to Congress, of the 
nature, advantages and disadvantages of the Country, the number of its in- 
habitants, their military force, their customs, and their dispositions with 
respect to the United States, their wealth, agriculture and commerce" — both 
as to the settlements east of the Mississippi and those "in his vicinity on the 
Western side." Despite these omissions Dane should undoubtedly have 
omitted more. 

156 The report of 1785 empowered the commissioner alone, that of 1787 
the commission and a majority of the magistrates (all being summoned to 
attend), to decide controversies over land titles; in both cases according 
to local law and custom. In criminal cases the role of Virginia law was in- 
creased; but whereas the report of 1785 made the criminal court consist 
of the commissioner plus not less than three magistrates, that of 1787, read 
literally, made it consist of the commissioner plus a majority of the magis- 
trates— all of them being summoned in both plans. 



to make and alter laws, subject to disapprobation by Congress. 107 
This last provision was substantively and administratively preferable 
for Illinois to the provision in the draft of the Ordinance of 1787 — 
and which first appeared at the same time — which empowered the gov- 
ernor and judges to "adopt" statutes of the original states, subject to 
like disallowance. This is very likely one detail in which Dane had 
hoped for a governmental plan for the Northwest better, from his 
point of view, than the Ordinance provided. That his ideal was not 
merely a commissioner with dictatorial powers is evident from the 
fact that he proposed in the Kaskaskia report to increase the power 
of the local magistrates. But it seems extremely likely that he did 
favor a commissioner type of government for the Northwest Territory, 
and that in the form actually adopted he would have preferred to 
empower the governor and judges to make laws. 158 

Two days after his report General Parsons presented for the 
Ohio Company its petition for the purchase of lands, the general 
Ordinance was hurried toward its final form, and nothing was ever 
done with the Kaskaskia report. The fact that Madison presented 
it (and presumably concurred in it, for that would seem much more 
probable, were there any dissent, than concurrence by the third mem- 
ber 159 ) is certainly some evidence of its soundness. Had the plan 
been adopted, the chaos in the Illinois settlements would have been 
ended long before St. Clair finally got there in 1790, and the land titles 
might possibly have been settled — not with the same scrupulous legal- 
ity, but perhaps with fairness and less unrest — two decades earlier. 

i^The report was of May 7. 1787 — Jour. Cont. Cong. 32: 266-69. The 
draft of the general governmental Ordinance for the Northwest as it was 
printed on May 9 contained the provision that for the Northwest Terri- 
tory the governor and judges should "adopt" laws of the original states, 
and this was unaltered in debates of May 10 and July 9 — ibid. 281. 

]5S Compare General Gage's views of proper government for the western 
country, in letter of May 15, 1768 to Secretary Barrington — C. E. Carter, ed., 

The Correspondence of General Thomas Gage (1931 ), 2: 473. Dane was 

a member of Monroe's committee from July 19 to Aug. 7, 1786 — Jour. Cont. 
Cong. 30: 418 n. 1, 31: 502 n. 1. When Monroe and Rufus King were dropped 
in a reconstitution of the committee, Dane was again added, Sept. 18, 1786 — 
ibid. 667 n. Monroe thought him "illiberal" — ante at notecall 73. Probably 
this opinion, expressed before Dane joined his committee, was strengthened 
by that association; provisions clearly Dane's, others probably his, appeared 
in the draft as soon as Monroe left the committee. 

is*' Abraham Clark — see the Dictionary of American Biography. He would 
certainly have revolted against the abuses of which the petitions complained, 
but would he have been willing to approve a commissioner of such large 



It is an interesting fact that when Monroe reported to Jefferson 
the complete abandonment of the latter 's plan for virtually immedi- 
ate self-government, and its replacement by a government not merely 
colonial in character but of a peculiarly strict and illiberal variety, 
Jefferson — who had been sent to France almost immediately after 
his ordinance was passed 100 — made on that point no protest whatever. 
His comments on the first letter of Monroe quoted above were limited 
to the abandonment of the system of very small states (decreed by 
Congress, but approved by him) ; and in fact the conservatives also, 
in their letters of the time, similarly accentuated the same problem, 
saying much less of government. 161 An inability for some months 
to write made an answer by him to the second letter quoted impossible 
at the time, 102 but he -never returned to the subject. This is very 
remarkable, much more so than appears without reflection. It is 
true that he concluded his remarks on Monroe's first letter with the 
self-depreciative remark that he respected his friend's opinion, and 
his knowledge of the western country, too much to be "ever [over ?] 
confident" of his own. But, nevertheless, he did return to this sub- 
ject of large or small states; and moreover — as respected closure of 
the Mississippi, at least — he asserted, and no doubt possessed, an 
excellent knowledge of the western people. 1 ' 53 Now notice : Jefferson 
demanded in all matters equal respect for their interests and those 
of the East ; otherwise, he feared their loss and the Union's disruption. 
Why did he challenge Monroe on the choice of large new states over 
small, but not on the choice of a colonial government? Why did he 
assert complete confidence in his own judgment of the western settlers 
as respected navigation of the Mississippi, but not as respected self- 

i6t> He was elected minister to France on May 7, left Congress on May 
11, sailed from Boston on July 5. 

lei Jefferson's views rested on theoretical grounds stated ante n. 68; 
letter of July 9, 1786 — Writings (Ford ed.), 4: 246-48. The two matters could 
not be completely separated. My impression is that problems of government 
were primary with Jefferson and even with Dane, but that various other men 
were more interested in the politics of the states to be created. Very plainly, 
Jefferson wanted the states small because he believed that only then could 
good government be maintained in them and the Union be secure against 
dangers from them. See the statements of his long-pondered views made in 
letters of Jan. 31, 1814 and Feb. 2, 1816 to J. C. Cabell — Writings (Memorial 
ed.), 14: 84, 421-23. Again, as to Dane, see his letter of Aug. 12, 1787 to 
Rufus King, quoted post at notecall 214. 

182 Writings (Ford ed.), 4: 331. 

163 See the quotations in n. 68 ante. 



government ? It was certainly not because the question of the opti- 
mum size of states was speculative and arguable, and discussion of 
it useful because a wrong choice would be, in practical fact, irremedi- 
able ; for all that would be equally true of a choice of government — 
if one concedes it to be arguable at all as respects the desirability of 
self-government. One astonishing fact is that, by implication, he did 
recognize it to be arguable. Another astonishing thing is that al- 
though he considered that closure of the Mississippi would not be 
"managing their interests honestly & for their own good" — or treating 
them with that equality which would hold them to the Union as 
friends 164 — he gave no indication that treatment of them as colonials, 
with at most no more freedom than had been enjoyed by the original 
states as colonies under the Empire, was not equality but subordina- 
tion to the interests of the East. 

But, after all, to what purpose could Jefferson, across the ocean, 
protest when his best friends repudiated his principles ?— particularly 
since they did so only sub silentio, referring solely to the advantages 
of the new plan over the old as respected the size of states. 165 Natu- 
rally, too, under these circumstances he did not include it among the 
services he had rendered his country, nor even allude to it in his 
autobiography. 166 But surely he could never have been brought to 
doubt the validity of the principles on which his plan had been based. 

Whatever may be true, of Jefferson, it would seem (if their 
literary remains fairly represent their opinions) that the distinction 
between a generous or an illiberal government in the West was not 
one that seemed of great importance in the minds of most easterners 
of the governing class, northern or southern. Monroe's committee, to 
be sure, borrowed from Jefferson's plan the word "temporary" (with- 
out anything it fitly described), and added some words of their own 
about ' ' infancy ' ' and learning to ' ' act for themselves ' ' ; but these 
small artifices and homilies indicated no sincere acknowledgment of 
the right of self-government. That right, as already remarked, is 
significantly absent from the compacts of the Ordinance in which 

16-t See letters cited ante n. 122. 

is5 Compare Carrington to Jefferson, Oct. 23, 1787 — Burnett, Letters, S: 
660; Virginia delegates to Governor Randolph, Nov. 3, 17S7 — ibid. 672. 
Compare Monroe to Jefferson, May 11, July 16, 1786 — ibid. 359-60, 403-4. 

i°6 As Mr. Ford stated (loc bit. in n. 171 post): see his Writings (Ford 
ed.), 7: 475. 



Nathan Dane cataloged his articles of civil faith, and which Congress 
approved. They only guaranteed a good government by those good 
enough to govern. The rights guaranteed were so important and the 
guaranties so well observed that the insecurity of the guaranty was 
unnoticed by those who through generations have lauded the Ordi- 
nance as an epitome of American civil liberties. Of that laudation 
it was unworthy; it lacked the fundamental protection on which all 
such liberties depend. 

However, accept at face value the above-quoted words of palli- 
ation, and the omission of the right of self-government appears neces- 
sary; and the acceptance of this reactionism of the Revolutionary 
decade has proved easy to American smugness. As John Sharp 
Williams complacently put it after the territorial system had run its 
long course, the people were held as wards "while being educated 
for statehood." 167 This is the traditional view, a thousand times as- 
sumed or asserted in Congress until the continental territorial system 
was a thing of the past, and generally, with much less excuse, accepted 
by historians. Even Dr. Farrand, our foremost authority on federal 
legislation on the territories, gave it currency. 168 Nevertheless, no 
matter how many names be cited to support it, such a view appears 
to be quite irreconcilable with the facts — as respects the Northwest 
Territory, for present purposes — relating to the origins of its popu- 

167 in his Thomas Jefferson (1913), 223. Similarly, James Schouler: 
"How has the Federal government . . . trained up its territorial offspring in 
political allegiance? First. ... by erecting territorial governments . . . 
and, under Federal officers, keeping the early settlements well in hand and 
popular rights protected until there are loyal inhabitants"- — note these words 
— "sufficiently numerous to draft a State constitution . . . and apply to 
Congress for full admission" — History of the United States (rev. ed. 1894), 
1: 110. And in a recent paper which, the writer believes, greatly over- 
estimates the prevalence of correct ideas concerning the Ordinance, Professor 
Billington speaks of it as "inaugurating an unbelievably liberal colonial 
system : one which provided for the political evolution of the colonies until 
they were ready to enter the mother country on equal terms" — R. A. Billing- 
ton, "The Historians of the Northwest Ordinance" (1947), Illinois State His- 
torical Society Journal, 40: 397. 

i6s "The principles of territorial government today are identical with 
those of 1787, and those principles comprise the largest measure of local 
self-government compatible with national control, a gradual extension of 
self-government to the people of a territory, and finally complete statehood 
and admission into the Union on a footing of equality with the other States" 
— Farrand, The Fathers of the Constitution, 77. But how could he write 
thus in 1921, in view of what he had written in 1908? — -see post at notecall 



Jiition, the nature of its governmental problems, and the actual ad- 
ministration of its local government. 1 *"' 

George Bancroft, in the last revision of his History, declared that 
"The design of Jefferson marks an era in the history of universal 
freedom." 17 " That it would have done so if it had actually been made 
the basis of our territorial system would seem to be incontestable. 
The statement by Paul Leicester Ford — properly qualified on that 
point — seems true beyond question: "Next to the Declaration of 
Independence (if indeed standing second to that), this document 
ranks in historical importance of all those drawn by Jefferson ; and, 
but for its being superseded by the 'Ordinance of 1787,' would rank 
among all American State papers immediately after the National Con- 
stitution." 171 His plan would have established from the beginning 
democratic self-government in every prospective member of the federal 
union. It was a plan consistent with our denunciations of British rule 
in the Declaration of Independence. And it would have been a grand 
substitute for colonial imperialism, of which the Ordinance of 1787 
was only a petty reproduction. 

However, great as were the merits of Jefferson's plan as such, it 
had little practical influence. Some of his admirers have given to it 
credit (or in some cases, from the writer's point of view, discredit) 
which cannot possibly be justified if any attention be given to the 
actual history of the territorial system. 172 It was laid as a foundation 

169 See post cccxlv seq. 

170 History (last revision), 6: 117; History of the Formation of the 
Constitution of the United States of America (1882), 1: 156. 

171 Jefferson, Writings (Ford ed.), 3: 430 n. Various other statements 
by Mr. Ford in this note are indefensible, and some are elsewhere criticized. 
He also says of the draft of the ordinance that "The clauses making this 
territory forever part of the United States and ending slavery in it after 
the year 1860 . . . are of small moment when compared with the system 
here for the first time established, that the inhabitants of the public domain 
were not to be held as subject colonies, but were to be given equal rights 
with the parent state" — P. L. Ford, introduction to Jefferson's Writings, 
1: xxx, italics added. In the ordinance they xoere given substantially equal 
rights. If the "to be" refers to this treatment of them under the ordinance, 
the writer agrees. If it refers to the equality that was to be given on admis- 
sion to the Union, that is equally true of the Ordinance of 1787, is of no 
peculiar merit in Jefferson's statute unless on the possibility noted post 
n. 172. The somewhat ambiguous passage just quoted is followed by the 
wholly fallacious judgment quoted in the next note. 

i"2 "Jefferson's ordinance of 1784 was the basis on which the American 
plan of colonization was founded" — E. Channing, History, 3 (1912): 540. 
"The student of our political institutions will recognize in this ordinance of 
Jefferson's all the essential principles of the organization and government 



for that system, but save for a few parts removed from it and built 
into a new foundation it did not serve as such. If the spirit of a 
governmental system is its essence, there was no trace in our terri- 
torial system of Jefferson's ordinance; and if principles of actual 
government are considered, that enactment supplied none to the sys- 
tem. It would not be easy to find other plans of equally noble char- 
acter, and so great in potential benefits, which have had so slight an 
influence. It did state certain principles respecting the relation be- 
tween territories and the national government which are not stated 
in the Constitution, yet have always been enforced as law. But these 
principles, which were incorporated into the Ordinance of 1787, 173 
have not been taken by the Supreme Court from either ordinance ; 
like their first enunciators in the Confederation era the Court de- 
rived them from the logical necessities of a federal system. 


Laudation of the Ordinance of 1787 has been equally immoderate 
and uncritical, and more abundant. Patriotic citizens might natu- 
rally assume that the organization of our territories provided in 1787 
rested upon provisions wise in nature and exact in expression ; that 
these were carefully adapted to local needs by local legislation ; and 
that under the system so devised beneficent administrators nurtured 
a peaceful and orderly people in the practices of republican govern- 
ment. There has been much oratory, and not a little more sober 
writing, expressing such ideas. In truth, however, the picture so 

of territories of the United States. ... Its spirit influenced our Territorial 
governments for more than a century" — -D. S. Muzzey, Thomas Jefferson 
(1918), 108, 109. "No [other] one enactment has had so vital an influence 
on the American union" — P. L. Ford, introduction to Jefferson's Writings, 
1: xxx. James Truslow Adams refers to "Jefferson's fundamental idea of 
equal union, and not of an imperial control over the West." This was, 
indeed, his ideal even as respected the pre-admission "states" in his ordi- 
nance. But Mr. Adams did not have them in mind: "The idea . . . that 
the new states to be formed should not be 'colonies' but eventually admitted 
as states on an equal basis, which has been one of the most fruitful ideas 
in our whole political history was wholly Jefferson's own" — The Living 
Jefferson (1936), 165; italics added. The state papers of earlier date are of 
course full of this idea, but Jefferson's claim to priority seems strong and 
would to that extent sustain Mr. Adams; see post cccxv-xvi. Claude Bowers 
completely ignores any distinction between the two ordinances: "He had 
drafted the Ordinance of the Northwest Territory, which first gave an 
organized society to the states of," etc. — C. G. Bowers, The Young Jefferson 
(1945), 344; compare 342. 

its Those discussed post n. 370. 



presented has very little resemblance to realities. Nevertheless, the 
importance of the Ordinance as an act of national administration — 
as an application on a great scale of various national policies — as a 
precedent in the proclamation of personal rights under Anglo-Ameri- 
can government and of other ideals — was so great as to justify much 
of the high praise it has received. 

Daniel Webster magniloquentry expressed doubt "whether one 
single law of any lawgiver, ancient or modern, has produced effects of 
more distinct, marked, and lasting character than the Ordinance of 
1787. " 174 In saying this he almost certainly overemphasized the 
effect of the Ordinance on slavery. Mr. Schouler characterized it as 
"the last really brilliant achievement of a procrastinating, paralytic, 
dying assembly"; but if brilliant it may reasonably be called, it was 
certainly neither the last nor the most brilliant. He also declared 
that it "deserved to rank among immortal parchments, both for what 
it accomplished and what it inspired"; a tribute which it seems to 
deserve under the second head much more clearly than under the 
first. 175 Professor McLaughlin wrote that the enactment, "because of 
its wise provisions and liberal terms, has justly been considered one 
of the most important documents in our history." 176 

i~* Works, 3: 263; Writings and Speeches. 5: 263. 

]'■-> James Schouler, History, 1: (Washington, 1880) 73, 100, (New York, 
1894), 83, 111. As for the first quotation, unless one says "in some respects," 
were not its acts of submitting to what many regard as the Federal Con- 
vention's coup a" etat, and of submitting the new Constitution to the states 
both later and more brilliant? Compare E. C. Burnett, The Continental 
Congress, 694-97. As for the second quotation, it was probably based on 
misconceptions of the nature of the slavery article. 

176 A. C. McLaughlin, The Confederation and the Constitution, 1783- 
1789 (1905), 120. Present-day thought regarding the Ordinance's compacts 
may be judged by the views of two scholars expressed in connection with its 
one hundred and fiftieth anniversary. Mr. Quaife seemingly considers the 
"compact" articles as in fact examp'es "of the most solemn agreement known 
to political science," and discusses them all on that basis, though he begins 
by disregarding their words, in recognizing only "two parties" as interested 
in them— M. M. Quaife, "The Significance of the Ordinance of 1787" (1938), 
111. Hist. Soc. Journal, 30: 418 seq. Mr. Pease, speaking as a guardian of 
the Ordinance on a memorial occasion, remarked that Dane "appropriated 
the great idea, original with Jefferson, of articles of compact" — T. C. Pease, 
"The Ordinance of 1787" (1937), Miss. Val. Hist. Rev. 25: 179. Both men 
evidently felt that the occasion called for actual interstate compacts, and 
it may be thought that Dane, in agreeing with Jefferson, appropriated his 
idea. But so far as any precise ideas regarding such compacts were mani- 
fested by Jefferson, Dane did not adopt them (ante n. 123 of Sec. III). In 
view of Mr. Pease's words elsewhere (j)ost n. 281) it seems doubtful whether 
he even distinguished actual interstate agreements from fictitious social 



Whether the reference in this opinion was to its compacts or to its 
other provisions is indeterminable from the context. The judgment 
invites the question, which provisions were wise and liberal? The 
compact articles might well be accepted as such, and probably could 
nearly all be shown to have done some good; most of all the slavery 
article in stimulating free-soil immigration. But all of them were 
influential chiefly because believed to be what they were not ; and 
besides, as Justin Winsor said, though the Ordinance "was an embodi- 
ment [in its compact articles, solely] of current aspirations, . . . 
[it] had not a single turning-point in human progress." 177 

The six principles taken from Jefferson to regulate the relation 
between the territory and the Union were forward-looking and im- 
portant, and would become of immediate significance upon attainment 
of local self-government ; but they were not new. The only parts of 
the Ordinance that were notably both new and forward-looking 
were Dane's provisions on intestate descent, the clause against im- 
pairment of contracts, and that regarding navigable waters of the 
territory. 178 

The intestacy provisions followed, to be sure, state legislation. 
But Dane was notably conservative, while this legislation (establishing 
equal inheritance by all children and abolishing distinction between 
whole and half blood) was a particularly important contribution to 
economic and social equality, expressing and giving solidity to demo- 
cratic tendencies in the distribution of land at the moment when 
great areas of confiscated Tory estates, the backhands of the Atlantic 
states, and now the vast acreage of the new federal territory, were 
available for settlement. The great importance of this portion of the 
Ordinance has been strangely underestimated. 170 Dane deserves 
very great credit for choosing the liberal view. He started with the 
simplest and most democratic rules of inheritance — far in advance 

177 j. Winsor, Westicard Movement, 285. 

17S As regards the authorship of these respective clauses see post nn. 349, 
363, 371. 

1 79 Not by Dr. Jameson, The Revolution Considered as a Social Move- 
ment, 49, 62. Nor by Professor Channing, who devoted to them as much 
space as to all the compact articles — History, 3: 545-47. 

Scattered through Professor Osgood's volumes on the eighteenth century 
there are scores of pages that throw light on resistance to survivals of feudal 
tenure, and "squatter philosophy versus vested interests." See B. W. Bond, 
Quit Rent System in the American Colonies (1919), R. B. Morris, Studies 
in the History of American Law (1930). 



of those prevailing- in most of the states — an area which, great as it 
was in itself, was small in comparison with that in which the same 
rules were later established by "extension" of the Ordinance or by 
special legislation of Congress. 180 He was abundantly entitled to the 
lifelong pride taken by him in this accomplishment. 181 It would be 
rashness to assume that the antislavery clause of the Ordinance made 
a greater contribution, or perhaps one as great, to the social fabric 
and commonweal of the country. 

The second innovation, the clause against impairment of con- 
tracts — which was duplicated (eulogists of the Ordinance always 
say "copied") in the new federal Constitution— outlawed any future 
concessions by state legislatures to the anti-creditor sentiment that had 
underlain much of the social turbulence of the Revolutionary period. 
The third innovation, and the six principles taken from Jefferson, have 
all continued as fundamental principles of national policy. 

Aside from these few total or relative novelties the importance of 
the Ordinance consists merely in its being an application of national 
policies relating to the territories as public lands. The Ordinance 
did not declare any national policy respecting their sale; it did not 
provide for their use in pajnnent of the federal debt ; nor did it first 
provide for the spread of population under settled government. That 
government, however, it did provide ; and it was therefore a great and 
forward-looking act in furthering the execution of the other policies. 182 

Some writers, desirous of eulogizing our colonial (or territorial) 
system, have eulogized the Ordinance as having "established" it. In 
a sense this is of course true, since the system did have its practical 
initiation in the Northwest Territory, under the Ordinance. Neverthe- 
less, the praise seems misplaced. The unique feature of our colonial 

iso George Elliott Howard wrote that "the planting of social institutions 
in the Northwest Territory, under the Ordinance of 1787" was "scarcely 
second in significance to any event in American annals" — Introduction to 
the Local Constitutional History of the United States (1889), 408. He was 
probably thinking of free institutions, and of the township and county or- 
ganizations to which his book was primarily devoted. Nothing points to 
appreciation of Dane's contribution on inheritance. 

isi Post n. 349. 

182 Mr. Paxson has said that "alone among the acts of the old Congress 
this Ordinance of 1787 stands out as a great constructive measure" — F. L. 
Paxson, American Frontier, 66. It would seem that within the narrow field 
here in question, certainly the resolutions of Oct. 10, 17S0 and perhaps the 
land ordinance of 1785 should take precedence over the Ordinance. Mr. 
Paxson, however, evidently considered it great and constructive in the field 
of government — ibid. 62-63, 66. 



system which these writers have wished to applaud— the provision for 
eventual admission of the territories as states into the federal Union — 
was established by two state papers which are certainly among the 
greatest of our national history : the declaration by Congress of 
October 10, 1780 which committed us morally to that great principle, 
and the detailed enumeration by Congress on September 13, 1783 of 
the conditions (that principle included) on which Virginia's cession 
would be accepted, which (Virginia agreeing) committed us legally 
to the principle and the system of March 1, 1784. 183 Eulogy should 
rather be bestowed on them than on the Ordinance. (And the caution 
may be repeated that although the system, as a working affair, was 
inaugurated by the Ordinance, one cannot find in its content a trace 
of the actual compacts that created and defined the system. 184 ) 

In the opinion of a very high authority "The two great achieve- 
ments of the Revolutionary epoch were (1) the establishment of gov- 
ernments limited by law and under obligation to protect individual 
liberty, and (2) the establishment in 1788 of a federal system based 
on law." 185 What was the relation of the Ordinance of 1787 (or of 
the territorial system generally) to these two achievements'? 

With the first it had no relation whatsoever. 180 Every provision 
of the Ordinance, compacts as well as others, was mere legislation 
by Congress, subject at any moment to amendment or repeal. If Con- 

i«zJour. Coni. Cong. 18: 915— Oct. 10, 1780; 25: 560— Sept. 13, 1783; 26: 
115 — March 1, 1784. See ante at notecall 171. 
is* See ante xci. 

185 a. C. McLaughlin, Foundations of American Constitutionalism (1933), 
147. "What are the two salient or cardinal principles of the American con- 
stitutional system as we know it today or as it was a hundred and forty 
years ago? Plainly, first a principle of federalism, which means the distri- 
bution of powers among independent governments; and, second, the prin- 
ciple, embodied in institutions, of limited government — government that can 
legally act only within a prescribed field" — A. C. McLaughlin, in T. Sizer 
et al.. Aspects of the Social History of America (1931), 40. The system of 
American constitutionalism rests "on one main principle: government is 
subject to law" — ibid. 61. See also his original article: "The Background of 
American Federalism" (1918), Amer. Pol. Sci. Rev. 12: 215-40. 

186 Whether the territories are outside the Constitution save for the 
single provision that Congress may make rules and regulations respecting 
them; that is, particularly, whether constitutional restraints on Congress as 
against the states are also binding on it in governing the territories, are 
still open questions in the sense that the Supreme Court has not passed 
directly and conclusively upon them. In various opinions the powers of 
Congress have been referred to as unqualified. See W. W. Willoughby, The 
Constitutional Law of the United States (2d ed. 3 vol. 1929), sec. 243 and 
ch. 31. 



gress exceeded its powers, its acts were void under the higher law 
whence its powers were derived — the Articles of Confederation or the 
Constitution. 187 But, as already emphasized, the provisions them- 
selves, if valid, could restrain no political body other than the legisla- 
ture and other branches of the territorial government. The greatest 
of all delusions respecting the Ordinance was the long-prevalent 
belief that Congress, either before or after 1789, could have embodied 
in that instrument any provision restrictive of its own powers, bind- 
ing on the original states, or binding on new states when those should 
be created from the Territory. 

The question regarding the relation of the Ordinance (or the 
territorial system generally) to the federal system must be answered 
in virtually the same manner. The federal system existed in an 
imperfect degree under the Articles of Confederation, and exists in a 
fuller and improved form under the Constitution. 188 It includes the 
Union (that is the federal entity or state known as the United States), 
the individual states, and the people of the several states, among which 
entities all sovereignty and governmental powers are distributed, as 
stated in the Tenth Amendment. The territories were wholly out- 
side the federal system. There was a connection between that and 
the territorial system, but it was not organic ; it was merely one of 
fact — that the latter system was the source whence the former ordi- 
narily derived its new members. The Ordinance governed the people 
of the Northwest Territory. Later they were organized into several 
states and these were admitted into the Union. Congress chose to 
recite in the Ordinance that these two things should be done, but 
there was no operative force in the recitation. And if perchance 
officers of the Territory participated in the organization of the new 
states they did so as agents of Congress outside their functions with- 

187 Ante clxxxvi-ix. Though for convenience we speak of the Ordinance 
of 1787, the Ordinance actually existent and to be dealt with under the 
present government is that of Aug. 7, 1789, being the act which re-enacted 
the Ordinance of 1787, with slight changes "to adapt the same to the present 
Constitution of the United States" — Carter, Territorial Papers. 2: 203. One 
who looks in T. Roosevelt's Winning of the West for his ideas on the Ordi- 
nance of 1787 will find two curiously obscure passages of which the exact 
meaning is indecipherable; but it must be assumed he was praising the new 
and great principle of ultimate statehood for the territories (colonies), — 
and wrongly crediting that to the Ordinance — 3: 260, 261. 

i» 8 See Professor McLaughlin's lecture, "Some Reflections on the Ameri- 
can Revolution" in T. Sizer et al.. Aspects of the Social History of America. 
32 seq. 



in the Ordinance's governmental plan, which, as such, was not in- 
strumentally involved in the act of the Territory's emancipation. Of 
course, however, these matters appeared different to readers of the 
Ordinance while it was believed that its "compact" articles were 
true compacts and had binding effect. To them, the Ordinance seemed 
to create federalism. Those historians who laud the Ordinance as 
"establishing" the colonial system would seem to be not wholly free 
from the effects of those old beliefs. 189 

For years before the Ordinance of 1787 was passed there seems to 
have existed a universal assumption that new states should be organ- 
ized in the West and admitted on an equality with the old. After 
October 10, 1780 the Confederation was morally bound to both of 
those acts if that region should become federal territory ; after 
Virginia's cession on conditions specifically stated and accepted, the 
Confederation was contractually bound to do so ; and by the Constitu- 
tion the burden of the old Union's compact was made binding on 
the new. 190 Jefferson's ordinance was intended to be a performance 
of the obligation, but it was to the Ordinance of 1787 that the honor 
fell of actually giving it first performance. Manifestly, however, the 
Ordinance was not "the first conscious movement of the American 
mind toward the universal application of the federal principle . . . 
to the continent." 191 It was far from being an early congressional 
enunciation of the policy ; and the enunciation in it lacked any bind- 
ing quality. Moreover, there seems to be good reason for accepting 

189 For example, speaking of the application by Kentucky to Congress 
for admission to the Union without prior territorial government (1792), 
Mr. Paxson says: "Thereupon there was debate upon the propriety of the 
formation of a state tvith no more authority than the general provisions of 
the Ordinance of 1787'' — F. L. Paxson, American Frontier, 94; italics added. 
Professor Howard {ante n. 180 at 408) also characterized the Ordinance as 
"marking an epoch in the development of constitutional forms and prin- 
ciples." If he meant by the former phrase either (1) the political subdivi- 
sions of a state (counties and townships) or (2) federalism, it seems to mark 
no epoch whatever. As regards "constitutional principles" he was obviously 
attributing to the Ordinance's "compacts" a super-legislative character. 

loo it has been shown in the second section of this introduction that the 
vague language of the Constitution, declaring that Congress "may admit" 
new states, was deliberately chosen in order to exclude any assumption in 
unqualified form of a duty to admit, despite the fact that the duty did exist 
under the compact with Virginia. Its acceptance even in qualified form 
affords some evidence of contemporary democracy and of the strength of the 
revolt against our colonial treatment. 

i9i Alexander Johnston, "Ordinance of 1787," in J. J. Lalor. Cyclopaedia 
of Political Science. 3 (1904): 33, col. 2. 



Herbert Adams' view that "federal unity with the great West was a 
Jeffersonian idea," 192 presented by him "to his own state before the 
Declaration of Independence, . . . [so that] if he did not originate it 
he was certainly one of those who held it first, ' ' 193 and his embodiment 
of the idea in the ordinance of 1784 should for that reason, as well 
as because of that enactment's prior date, give the expression in 1784 
precedence, as a matter of historical fame, over the repetition in 1787. 
The fact still remains that the later ordinance was the first actual 
and effective application of the policy, and one on so vast a scale as to 
presage its stability and success. 

There is another point to consider before leaving this subsidiary 
relationship of the territorial to the federal system. Professor Mc- 
Laughlin tells us that Jefferson's ordinance "embodied the two essen- 
tial ideas of the American territorial system : ( 1 ) temporary or terri- 
torial government; and (2) ultimate admission to the Union on terms 
of equality with the older states. ' ' 194 As a statement relating to mere 
form that is correct; Jefferson's plan did provide for territorial gov- 
ernment prior to admission to the Confederation, but that bald fact 
does Jefferson little credit, since some government was self-evidently 
necessary. On the other hand, if Professor McLaughlin's statement 
be understood to mean that Jefferson's provision for pre-Union gov- 
ernment even remotely resembled "the territorial system" established 
by the Ordinance of 1787, that would be a misunderstanding, for- 
tunately for Jefferson's honor. Consider for a moment the record. 
Even in the territorial system's final form it was not "essential" 
that a "temporary or territorial government" precede admission to 
the Union ; in fact seven states entered the Union without it, al- 
though in each case for special reasons which usually showed that 
the requirement would have been wholly superfluous. 193 As already 
emphasized, neither in the acts of state by which the system was 

192 "Maryland's Influence upon Land Cessions to the United States," Johns 
Hopkins Studies in Hist. a?icl Pol. Sci. 3d series, 3, no. 1: 47 n. Same in 
The Nation (May 4, 1882), 32: 384, col. 1. 

193 Dumas Malone, Jefferson and His Time, 1 (1948): 412. 

is* A. C. McLaughlin and A. B. Hart, Cyclopedia of American Govern- 
ment, 3: 585 s.v. "Ordinance of 1784." 

i9o Vermont, Kentucky, Tennessee, Maine, Texas, California, West Vir- 
ginia; in addition to four of the original thirteen states that ratified the 
Constitution after the Union had come into existence by the ratification of 
the first nine — Virginia, New York, North Carolina, and Rhode Island. 



created, nor in any state or congressional reference to it (anticipatory 
or retrospective) for some years preceding 1787, was the first stage 
assumed as essential. 196 Until October 1783 there was nothing in any 
to suggest the necessity of what "temporary or territorial government" 
was made to mean by the Ordinance of 1787. Jefferson's ordinance 
did, as Professor McLaughlin said, create a territorial stage (in fact 
one of two divisions, temporary and permanent), but consider the 
differences under the two ordinances. Under that of 1787 there was, 
first, complete and 1 general government by federal appointees; later, 
local self-government but still under rigid control by Congress posi- 
tively and deliberately provided for. Under that of 1784 there would 
have been complete self-government from the beginning; first, under 
the laws of any state which the inhabitants however few in number 
should elect ; second, under their own constitution ; with no control 
by Congress provided for except preceding any election of self-govern- 
ment, and then only "from time to time" if necessary for the main- 
tenance of order. Before admission to the Confederation, these politi- 
cal units, though Jefferson called them ' ' states, ' ' would not have been 
units of the federal system. Of course, too, since the Constitution 
gave Congress powers to regulate the territories (doubtfully restricted 
if at all) in theory Congress could later have asserted direct control ; 
just as it might later have renounced the control given it in the system 
established in 1787. 

At any rate three things seem plain. One: that "federal unity 
with the great West" meant to Jefferson something very different 
from its meaning to those who — for that reason — discarded his govern- 
mental plan. Another : that interference by Congress in territorial 
affairs, which was the purpose and essence of the revisers' plan, would 
have been minimized by Jefferson's plan, and jealously checked by 
those enjoying self-government under it — if given adequate repre- 
sentation in Congress. And finally : that in so far as federal inter- 
ference would have been checked (in fact virtually excluded), there 
could not have arisen under it the politics- and spoliation-ridden 
territorial administration that developed under the system of 1787. 197 
Under Jefferson's plan the territorial system would have exer- 

196 Ante at notecall 100. 

i»T See E. S. Pomeroy, The Territories and the United States, 1861-1890: 
Studies in Colonial Administration (1947). 



cised a vastly preferable effect upon the admission of states, and a 
beneficial effect, reactively, upon the federal government. 

But territorial government should be viewed, as Jefferson in- 
sisted, from the viewpoint of the territory's inhabitants. That 
dependencies held by the confederated states and settled by their own 
citizens should have been treated better than those states had been 
treated as colonies — for the sake of a decent consistency between prin- 
ciples and practice, if for no higher reason — would seem to be self- 
evident. Not so an assumption that if the new united states should 
acquire territory and set up territorial governments these should ulti- 
mately be admitted to the Union. Reasoning in vacuo, that would 
not seem to be a political necessity. But, as to that, the propriety 
of the action had evidently always been assumed, and the assumption 
testifies to the honesty of our protestations against British rule. There 
was no excuse in logic for the governmental plan of the Ordinance 
of 1787. There was nothing in it that deserves praise for being either 
new or good ; nothing of the aspirations of the era ; nothing but the 
old stuff of extreme conservatism. It did recognize those aspirations 
in its "compacts" — all except the one most important, and most 
characteristic of the time : self-government. At best there is only a 
partial truth in the statement that "it crystallized the principles 
of colonial organization about which men had been disputing for a 
generation. " 198 It could not possibly deserve that description with- 
out a great addition of democracy in its plan of government. Rather, 
it seems fair to say, the fright over social disorders of the time ended 
debate ; the conservatives, 1 '-' 9 completely dominant in Congress, passed 
a completely ungenerous and reactionary statute while .in that 
state of mind. 

198 A. C. McLaughlin, Confederation and Constitution, 125. 

i?9 In 1785, when Monroe had begun the replacement of Jefferson's ordi- 
nance, he wrote to Jefferson: "I have never seen a body of men collected in 
which there was less party, for there is not a shadow of it here" — June 16, 
Burnett, Letters, 8: 144. This suggests that Monroe would not have recog- 
nized "party" as involved so long as only one view or interest was expressed. 
He must have admitted in 1786 (as regarded among other things the resig- 
nation of his chairmanship) that the situation was very different. Abraham 
Baldwin wrote a few months later to Charles Thomson: "The strength and 
influence in this state [Georgia] is most decidedly of liberal measures to sup- 
port our national character and policy. In riding through the different states 
on my return I was fully convinced that the same disposition generally per- 
vades them. There is no place where the clashing of State interest is so 



This characterization assumes what must be shown : that the 
Ordinance's inconsonance with all the liberal trends of the time was 
inexcusable. That is the next point to be considered. The excuse 
has either always been assumed by those who have lauded the instru- 
ment or, much more probably, they have not noted the inconsonance ; 
for their laudation of the Ordinance for the compacts it contains has 
manifestly been based on their complete consonance with the idealism 
of the Revolutionary era. 

Since one statute was never actually applied, the difference as 
respects democracy between the two ordinances of 1784 and 1787 is 
a very minor historical fact, and quite naturally it has generally been 
ignored by, or has escaped the notice of, our general historians. 200 It 
is astonishing, however, - that the same should be true of biographers 
of Jefferson, of special students of our political institutions, and even 

strongly marked as on the floor of Congress" — Feb. 14, 1786, in Collections 
of the Neiv York Historical Society (1878), 204. 

"We have Nine States represented," Rufus King wrote in 1787, "and 
if I can form an opinion from so short an acquaintance with this new 
Assembly, I should not lament if their year was nearer its expiration than 
it is" — Feb. 18 to Elbridge Gerry, Burnett, Letters, 8: 541. These last two 
quotations fairly present the impression one gets, through the years, from 
Mr. Burnett's collection. Monroe's decidedly does not. 

200 See ante cccviii. McMaster stated of Jefferson's draft that it was 
"a code of laws . . . which should serve as a constitution for each state 
till twenty thousand free inhabitants acquired the right of self-government"; 
and added to this absurdity the judgment that it was "in no wise a remark- 
able performance" except lor its proposals (lost in debate) on slavery and 
hereditary titles — J. B. McMaster, History of the People of the United States 
(cop. 1888, pr. 1896), 1: 166-67. In his second vo'.ume he got around to the 
later ordinance and recited its contents — 2: 478; but saw in it nothing on 
which to comment. He overlooked utterly the question of democracy. E. 
Channing recognized that stronger government was created by the Ordinance 
of 1787; but in his comments upon Paul Leicester Ford's eulogy of Jeffer- 
son's ordinance there is nothing to indicate that he understood that eulogy 
to be based on the enactment's democratic character. He took it to be based, 
seemingly, on its slavery proposal and compact proposal (neither adopted) ; 
and Channing's own reference to the later law as "the great Ordinance" 
was seemingly also based on its "compacts" as ideals. He had given thought, 
however, to the legal status of the two enactments and believed them to have 
none; see ante at notecall 1. That being so, he thought the Ordinance 
of 1787, like the Declaration of Independence, only "a statement of prin- 
ciples, of ideals," not even of legislative character. History, 3 (1912): 543, 
539 n., 547. Justin Winsor noted that Jefferson's ordinance proposed man- 
hood suffrage, whereas the Ordinance of 1787 established property qualifica- 
tions, but when he stated the former's "essential features" he gave no em- 
phasis to its provisions for immediate and total self-government — WesUoard 
Movement, 287, 260. Of Greene's remarks it need only be said that he too 
seems to have thought only of the supposed compacts, not at all of the ques- 
tion of democracy — E. B. Greene, Foundations of American Nationality. 576. 



of writers on the two ordinances, particularly if they were (or are) 
themselves true democrats. 201 

The respective characters of the two enactments being thus over- 
looked or misconceived, the relation between them has necessarily 
been subject to similar misconceptions. The number is astonishing 
of writers who state that the earlier enactment served as a "first 
draft ' ' of the later, or that this was only an amplification of the other, 
or that the later ordinance owed much as respected its governmental 
plan to the earlier law, or who utterly confound one enactment with 
the other. 202 These are matters of fact, the truth as to which is 

201 Of biographers, if Mr. Schouler noted the difference between the two 
statutes (he states the self-government provisions of Jefferson's), he says 
nothing of it. — J. Schouler, Thomas Jefferson (1893), 129-32. James Truslow 
Adams does not refer to it — The Living Jefferson, 164-65; see ante n. 17? 
and post n. 212. The same is true of the books of George Tucker (1837), 
H. S. Randall (1858—1: 397-400), F. W. Hirst, W. E. Curtis; C. G. Bowers, 
The Young Jefferson, 341-43; A. J. Nock. 

Nothing but superficial facts are to be found in Francis N. Thorpe's 
A Constitutional History of the American People, 1116-1850 (2 vol. 1898), 
1: 144-49. George Elliott Howard, after lauding with excess the Ordinance 
of 1787 (see ante nn. 180, 189) went on to state its utterly autocratic pro- 
visions for government of the first stage without manifesting the slightest 
consciousness of their true character — Local Constitutional History, 408. 
President Hinsdale wrote that "The imperishable principles of polity woven 
into the Ordinance of 1787 were the ripe fruit of many centuries of Anglo- 
Saxon civilization" — Old Northwest, 273. This was true of the compact 
articles of 1787; it was true of the governmental plan of 1784. Jay Amos 
Barrett (who wrote his thesis on the Ordinance of 1787 under Professor 
Howard) seemingly saw no substantial difference between the two ordinances. 
— Evolution of the Ordinance of 1181, 37-38, 44-45; yet both he and Howard 
were true democrats, well known to the writer. Governor Edward Coles was so 
exclusively interested (like so many later historians) in the antislavery 
article that he did not even advert to any difference between the two ordi- 
nances as respected their governmental provisions — History of the Ordinance 
of 1181, 9-15; on the contrary, after stating the provisions of Jefferson's plan 
he said, "all which provisions were those which formed substantially the 
ordinance" of 1787, "to which were added in more detail the form of terri- 
torial government and" the regulation of descent and conveyance — ibid. 14 
(italics added). 

202 Most extraordinary of all is Max Farrand's statement that "as a 
working plan of government the Ordinance of 1787 owes much to Jefferson's 
Ordinance of 1784" — The Fathers of the Constitution, 75. Professor Chan- 
ning suggested that "Certainly it" — Jefferson's law — "may at least be re- 
garded as the first draft of the great Ordinance" — History, 3: 539. This seems 
to be the view, also, of Professor Paxson (ante n. 189), who thinks that the 
Ordinance shows merely "elaborations upon his [Jefferson's] idea and . . . 
practical improvements," though he introduces ambiguity by adding: "so 
sweeping as to show the touch of other hands and interests" — American 
Frontier, 66. Likewise of Alexander Johnston: "The fairest view is that 
Jefferson's report was the framework on which the ordinance [of 1787] 
was built: the general scheme was that of the former, but the provisions 



patent for anyone who reads the two instruments. Since Jefferson's 
plan was a law, the repeal of which was essential before it couki 
be supplanted by another, it was necessarily a point of departure. 
But the whole process was one of departure. The later statute took 
from the earlier literally nothing' of spirit, and of matter nothing 
except six provisions embodied in one of the six compact articles of 
1787. But let us add, as taken from Jefferson, the sixth compact 
article on slavery — though it was not taken from his ordinance, both 
because it was not there and because very different in content from 
the provision in his original draft. Still, the actual borrowing, con- 
sidered physically, would be only an eighth of the Ordinance's verbi- 
age. If one considers the remainder, nearly a third was totally new 
even in subject matter, 203 and the other two-thirds, though dealing 
with the common subject of local government, were not in any ac- 
ceptable sense a revision of Jefferson's plan. Nothing could have been 
drawn from the latter except the subject ; every provision on it was 
utterly new in matter, and totally antagonistic in spirit, to Jefferson 's 
provisions. Those who have written of the later law as based on his 
have wished him to share in a glory they attribute to the former, but 
fortunately for those who revere Jefferson as a great liberal there is 
no basis for the supposed affiliation. 

Even more numerous are generalizations to the effect that the 
Ordinance of 1787 embodied "in the main" or "substantially" the 
provisions of Jefferson's, or "the best" or "most essential" of 
them. 204 These generalizations present a question of opinion. 

were amplified, and the following changes and new provisions were made" — 
in J. J. Lalor, Cyclopaedia of Pol. Sci. 3 (1904): 31, col. 2, s.v. "Ordinance 
of 1787." Mr. Bowers either completely confounds the two ordinances or 
wholly merges their effects in Jefferson's favor. He speaks of him as "writ- 
ing . . . the Ordinance of the Northwest Territory" (and he did write one), 
and of having "drafted the Ordinance of the Northwest Territory, which 
first gave an organized society to the future States" of that region "that was 
in keeping with republican ideals," which was true only of a society and an 
organization existent in a paper writing. C. G. Bowers, The Young Jefferson, 
335, 339, 342, 344; italics added. 

2°3 Totally new were the introductory portion dealing with decedents' 
estates, wills, and conveyances; the first, second, and third compact articles; 
and the navigation clause at the end of the fourth. 

204 James Schouler put it that Congress, in organizing the territorial 
system, "adopted in the main" Jefferson's plan — History (N. Y. 1894), 1: 
109; (Washington, 1880), 1: 100 n. John T. Morse wrote of his plan: "It 
contains the substance of the famous Ordinance of the Northwestern Terri- 
tory" — Thomas Jefferson (1918), 75. Professor Muzzey says that "Its pro- 
visions were copied largely in the famous Northwest Ordinance of 1787 and 



However, it seems to be obvious that since both enactments de- 
clared themselves to be "for the government of" the territory north- 
west of the Ohio, and not of the future states to be formed therefrom, 
the strictly governmental plan should be regarded as the substantial 
or essential part of each. That is, the supposed compacts of the later 
ordinance should be wholly excluded, not only because it is a hun- 
dred years since the Supreme Court explained their true nature,-" 5 and 
historians should ere this have learned it, but because even those 
"compacts" that obviously referred to the present had reference 
to personal rights against government and not to its forms and 
mechanism. If the essence of the two ordinances is their govern- 
mental plans, any suggestion that substantial or essential provisions 
of the earlier plan were adopted in the later would be obviously 
erroneous; for it has been seen that both the letter and the spirit of 
the two plans were utterly unlike and irreconcilable, and were delib- 
erately made so. 

But this refers to the plan of actual government. There were 
three large aspects of the system under the two ordinances in which 
they did not differ: (1) that government of the settlers preceding 
their organization as a state admitted to the Union was subject to 
some restrictions; (2) that as soon as self-government existed in the 
Territorj' its inhabitants were also to have a limited representation 
in Congress; and (3) that ultimately they were to be admitted to the 
Union upon attaining a certain population (etc.). These are doubt- 
less the distinctive features of the territorial system. But were they 
the essential provisions of Jefferson's plan, and were they copied 
from it into the Ordinance of 1787?-'"'' The allowance or denial of 

in the Constitution of the United States" — Thomas Jefferson (1918), 109. 
Mr. Malone writes: "Its essential features were incorporated in the more 
famous Northwest Ordinance of 1787" — D. Malone, Jefferson and His Time 
(1948), 1: 412. And yet Mr. Malone also states: "The specific provisions for 
government . . . were sunerseded by the provisions of the Ordinance of 
1787. They were chiefly significant in allowing for successive stages of 
government, and for self-government at every stage" — ibid. 413. 

2° r > See ante ccxvi seq. 

-'"This would seem to be, essentially, Dumas Malone's view — ante n. 
204. Dr. Burnett's view might be classed with those of the authors quoted in n. 
204 or (perhaps) here; for he first states succinctly all of Jefferson's plan end- 
ing with a reference to limited representation in Congress and admission to 
the Union upon attaining a certain population, and then concludes: "These 
features, in their essential character, remained the core of the system finally 
adopted in 1787" — The Continental Congress. 600; italics added. 



personal credit to Jefferson is here in issue. It might possibly be 
given properly as respects the second principle ; however, Jefferson 
himself presumably took that from Silas Deane or Thomas Paine. 
Credit could be given Jefferson for the third principle only on the 
assumption, -probably justified, that he first proposed it. It was a 
provision of the compact between Virginia and the Confederation, 
necessarily taken thence both by him for embodiment in his ordinance 
and by those who framed the later statute. Finally, should Jefferson 
be credited for any "copying*" in 1787 of provisions for the govern- 
ment of territorial inhabitants preceding admission to the Union ? 
The compact with Virginia required no pre-admission government ; 
much less, government of a particular kind ; the type suggested by 
Jefferson was therefore truly his. But it would be both a logical ab- 
surdity and an injustice to Jefferson to say that the essentially re- 
strictive government of the Ordinance of 1787 arose from copying a 
plan in which restrictions on self-government were virtually non- 
existent. The mere idea of some pre-admission government could 
have been copied ; but surely the framers of the later ordinance 
needed no suggestions respecting such government, nor did they con- 
cede that Jefferson had provided any. In truth, all they did pro- 
ceeded from their own conservative heads. 

Could it still be true, however, that "the best" of Jefferson's 
provisions were transferred to the later ordinance? 207 Certainly not 
if the best were those which conferred immediate and complete self- 
government. Also, probably many would concede these to have been 
best, provided the disorder of the frontier and the doubts many 
harbored of its loyalty gave no reasonable justification for repudiat- 
ing them ; and reasons will be given below for the opinion that they 
did give no justification. However, it would seem that historians 
today, perhaps no less than a century ago, can see little in the Ordi- 
nance of 1787 save its compacts, 208 and some of these might to them 

207 "The fifth and great Ordinance, as Mr. Bancroft says, embodied the 
best parts of all its predecessors"— B. A. Hinsdale, Old Northtcest, 273. The 
five "ordinances" presumably meant are Jefferson's, Monroe's two committee 
reports, Dr. Johnson's one, and Dane's third. Mr. Hulbert has given the 
great weight of his name to the same judgment: "The Ordinance of 1787 
. . . was a summing up of the best of contemporary opinion" — A. B. Hulbert, 
The Records of the Original Proceedings of the Ohio Company (1917), 1: 

20s if Professor Channing be not the only one who has given serious 
thought to their nature, at all events he is the only one whose writings I have 



seem "the best." If we so assume, and also assume, first, that the 
best provisions were those declaring personal liberties — though, recur- 
ring again to John Dickinson, 209 a superlative seems here to be logi- 
cally indefensible, — one difficulty is that none of these came from 
Jefferson's ordinance. Another is that, after all, Congress merely 
promised in those provisions that it would observe (and it faithfully 
did) those principles which in every state the constitution compelled 
the legislature to observe. Those who eulogize the compacts are 
eulogizing merely a legislative tribute to Anglo-American traditions. 
If one next chooses the slavery compact, the difficulty again is that, 
speaking accurately, it was not taken either from his ordinance or from 
his original draft. 210 Still, in a general way the good idea might be 
said to have come through him.. And, likewise, if one were to choose 
the six provisions formulated by Jefferson to indicate the legal sepa- 
rateness of territories and Union, all those (though two were hardly 
his) were taken over into the later ordinance. 211 

In this manner it is possible to accept with qualifications some of 
the loose generalizations that have been uttered respecting the rela- 
tion between the two ordinances. 212 


Direct and contemporary testimony that abandonment of Jeffer- 
son's provisions for liberal territorial self-government was a special 
objective of eastern conservatives is given us by Dane. Much, said 
he, as respected desirable developments in the West, would "depend 
on the direction given to the first settlements . . . and as the Eastern 

happened to read and in which I have noted any reflection of such thought. 
And that his thought was not sufficient to be satisfactory is clear from nn. 
1, 200, 202 ante. 

20'J Ante n. 18. 

2io Ante ccxxxi-ii. 

- 11 Mr. Malone characterizes these as "the most striking feature" of the 
plan — D. Malone, Jefferson and His Time (1948), 1: 413. See post ccclxxxii-iii. 

2i - Particularly when what is said to have been transferred is identified 
as "famous." Thus it is measurably true that "the later ordinance, in its 
more famous clauses, was all drawn from Jefferson's" — James Truslow 
Adams, The Living Jefferson, 164; although — since the six provisions of 
Compact IV, taken from Jefferson, are no more famous than those of I and 
II which were not so taken — a "some of" might well be inserted. Probably 
Mr. Adams was thinking of the slavery compact as taken from Jefferson's 
ordinance. So was Paul Leicester Ford when he stated that that enactment 
"contains practically every provision which has made the later ordinance 
famous" — Writings of Thomas Jefferson, 3: 430. 



states for the sake of doing away the temporary governments, etc. 
established in 1784, and for establishing some order in that Country, 
gave up as much as could reasonably be expected, 213 I think it will be 
just and proper in them to establish as far as they can consistently, 
Eastern politics in it, especially in the state adjoining- Pennsyl- 
vania. ' ' 214 In a deliberate and somewhat apologetic attempt to justify 
the illiberality of the Ordinance, Dane also gave direct testimony — 
forty-three years after its enactment — that the action of Congress 
in adopting that statute's illiberal governmental provisions was 
dictated by fear. Said he : 

The objection, that it did not sufficiently favour freedom as to a 
territorial system . . . will vanish when we properly consider the 
peculiar state of our country in July 1787 ; then the Federal Con- 
stitution had not been formed; then there were strong apprehensions 
that the territories, or some of them, might not be disposed to come 
into the Union as States, if they should have territorial governments 
that should make their condition as territories, as much to their wishes 
or more so, as it probably would be when States in the Union. Hence 
it was deemed best by all but one member, 210 so to form their terri- 
torial system as to create some real motives in them to draw and bring 
them into the Union in due time. 216 

It is noticeable that Dane here makes no reference whatever, as 
a reason for adopting a centralized territorial government, to any 
supposed danger that the West might otherwise have been lost to a 
foreign power. Had that entered into the reasons of the committee, 
or Congress, it would seem that he would not have forgotten it or 
omitted it even thirty-six years later. He defends the system adopted 
for but one reason: that the inhabitants of the Territory would not 
be contented under it, and being discontented would be desirous of 
entering the Union to escape it. This was in fact its operation and 

213 What concessions were made, of any tangible nature and substantial 
value, does not appear. See the report to the governor of Massachusetts 
by the delegates of that state after passage of the Ordinance, quoted ante 
n. 47. Since there is no reference in their report to anything else that could 
possibly have been a concession of importance, and the above statement does 
seem to be apologetic, possibly Dane regarded this as the sacrifice made by 
Massachusetts. If so there seems to be no other evidence that it was re- 
garded as such. It has been said that the Ordinance forced a lowering of 
the price of state backlands; but evidently they were not lowered to the 
lowest remunerative price— compare W. P. Cutler, Manasseh Cutler, 1: 303-4. 

214 Letter of Aug. 12, 1787— Burnett, Letters. 8: 636. 
2i"> Abraham Yates of New York. 

216 N. Dane, Abridgment, 7: 444. 



consequence throughout the existence of the territorial system. 217 How- 
ever, this explanation of the committee's action — if there be any truth 
in it — is very far from being all the truth. 

It fitted the facts respecting the operation of the Ordinance as 
time had made them clear after the admission of six states to the 
Union under its provisions. Nor was it inconsistent with anything 
that Dane had written earlier than 1787 ; that record merely shows that 
he desired a very strong government — stronger even than that which 
the Ordinance provided; not the reasons why he desired such. 218 The 
explanation is, however, wholly inconsistent with the passage above 
quoted from a letter written a month after adoption of the Ordinance. 
Nor does it tit at all the record of the instrument's drafting, in which 
Dane had participated for two years. It did not cover Richard 
Henry Lee's reason for desiring the new plan, 219 nor explain Dane's 
great pride in claiming authorship of the clause forbidding impair- 
ment of contracts, a claim which he contested with Lee. 22 " In short 
it may be a partial but is certainly a specious explanation. It is in- 
consistent with the declarations of the Duane committee in its report 
of October 1783, 221 with those of the grand committee of March 
1786, 222 with those of Monroe's first report of May 1786. 223 It is per- 
fectly clear that in men's first thoughts of the territories — of Con- 
gress in its declaration of October 1780, of the army officers in their 
plan of 1783, of Washington in his comments thereon and in other 

21" It is quite evident that the discontent admittedly intended to be thus 
created would have increased any danger actually existing in local desires 
for independence; yet no special provisions for military control were made 
in the Ordinance, or debated in Congress at the time in connection with the 
Ordinance. It seems, therefore, — assuming the reliability of Dane's ex- 
planation for the adoption of a repressive government —that the committee 
must have taken a dim view of the likelihood of any danger of a movement 
for independence on the border. 

sis in fact there is no record written by Dane that antedates the Ordi- 
nance; the letters quoted ante at notecalls 132 and 214 were both written 
after the Ordinance was passed. Dane was elected a delegate in 1785, 1786, 
and 1787, to sit each time for one year beginning in November. Mr. Burnett 
prints in his Letters twenty-three letters of Dane, of which three contain 
references to separatism in Maine and Vermont and (post at notecall 301) 
to the western settlements of the Atlantic states; and two, those cited above 
in this note, referred to the Northwest Territory. 

219 Ante at notecall 130. 

220 post n. 363. 

221 Quoted ante following notecall 97. 

222 Quoted ante preceding notecall 112. 

223 Quoted ante preceding notecall 114. 



letters, of Jefferson in his governmental plan of 1784 — there was 
none for the provision of a period of probationary or tutelary govern- 
ment. 224 It may perhaps be assumed, though it is nowhere so stated 
or even hinted, that there was an idea of requiring a certain popula- 
tion, but that is a different matter. And more plans than those here- 
tofore cited reflect these same ideas. 22 "' 

The report of Duane's committee in October 1783 undoubtedly 
was a reaction against manifestations in the debates of the preceding 
summer of an inclination to neglect adequate control of the "disor- 
derly and dispersed settlements" on the border and "the depravity 
of manners which they [had] a tendency to produce." The conserva- 
tives made their attack more effective by seeking and securing Wash- 
ington 's advice (in substance a repetition of well-known views) against 
indiscriminate locations as a mode of settlement, and coupling this 
with an expression of their own views respecting the form of govern- 
ment. 226 Jefferson's plan, adopted in the following April did not 

224 Ante lxxii-iii, clix-lx, cclxxxii-iv, cclxxxvi-ix. 

225 i n the motion by Theodorick Bland in Congress, made on June 5, 1783 
and designed to give free land to the army in lieu of all debts due its officers 
and private soldiers, a population of 20,000 "male inhabitants" was the con- 
dition of admission — Jour. Cont. Cong. 24: 385. Mr. J. A. Barrett, in Evolu- 
tion of the Ordinance of 1787, at 4 n. 1, refers to Silas Deane's letter of Dec. 
1, 1776 to the Secret Committee of Congress. This letter suggested the sale 
of lands in the Northwest to pay the war debt; advocated a grant to a com- 
pany "of Europeans and Americans" ("which company should form a dis- 
stinct State") of land for colonization, it to "engage to have in seven years 
. . . [blank] thousand families settled on said grant, and civil government 
regulated and supported on the most free and liberal principles, taking 
therein the advice of . . . Congress" — American Achives, Fifth Series. 
3: 102. It was not explicitly stated that the inhabitants should be admitted 
as a state of the Confederation, but that was probably assumed. Thomas Paine, 
in a pamphlet of 1780, assumed that a state unpeopled when created would 
require national government "for a certain term of years (perhaps ten) or 
until the state becomes peopled to a certain number of inhabitants." He 
also answered negatively the question "whether a new state should immedi- 
ately possess an equal right with the present ones in all cases which may 
come before Congress," but thought "it ought to be immediately incorporated 
into the Union on the ground of a family right" — as "a younger child of 
the same stock." "But," said he, "as new emigrants will have something 
to learn when they first come to America, and a new state requiring aid 
rather than capable of giving it," it should at once have some representation 
— "Public Good," in Worhs (Van der Weyde ed.), 4: 107-8. See post 
ccclxxix. Mr. Hulbert has published various of these sources in a reprint 
which, as he says, facilitates the use of the books of Mr. Barrett and of 
Professor Treat (post n. 239) — A. B. Hulbert, Ohio in the Time of the Con- 
federation. Some of his editorial comments are elsewhere quoted. 

226 Compare Washington's letter of Sept. 7, 1783 — Writings (Fitzpatrick 
ed.), 27: 133 — with the report quoted ante at notecall 98. 



conform, in the opinion of conservatives, to the views of Duane's com- 
mittee. This was why it was repealed, as shown in the report of the 
grand committee two years later, followed by the first report of 
Monroe's committee, when the actual repudiation of the plan was 
begun. 227 It seems to be quite clear that there only gradually devel- 
oped the view that was embodied in the Ordinance of 1787. And the 
change in men's attitudes within a few years is shown by the fact that 
the new plan was applied to a settlement of which the core was con- 
stituted by the identical army officers and soldiers who expected in 
1783 to be admitted immediately to the Union under a constitution 
and laws adopted in company meeting in advance of migration, with 
Washington's wholehearted approval. 228 

Although it is perfectly clear what was done, it remains to con- 
sider somewhat further why men who prized self-government in their 
own states should have resolved to treat their western fellow citizens as 
wards ; or, to use words more suggestive of their motives and less of 

--'' The former emphasizing the need of a government such that "order 
and the true principles of government may be established" — ante at note- 
call 112; the latter serving notice that the government must last until the 
border individualists should become nationally minded — ante at notecall 
114. It has been indicated at notecalls 155-58 above that probably Nathan 
Dane and other conservatives would have desired to have the Northwest 
ruled by commissioners or magistrates of latitudinarian powers. Since the 
Ordinance draft had from the beginning excluded representative government, 
and no legislative provision appeared until May 1787, the introduction of the 
power to "adopt" laws of the "original states" (post ccccv seq. ) very prob- 
ably appeared a step of liberalism. 

It would perhaps be of no utility to compile a long list of the illiberal 
sentiments expressed by early administrators in the territories. Some may 
very well have been justified by circumstances of the moment, such as the 
fears of an Indian uprising when Secretary Gibson voiced the opinion that 
only the military could enforce obedience and that none who refused obedi- 
ence should be allowed to remain in the Territory — post cccclx. The fol- 
lowing expressions of opinion respecting the character of territorial in- 
habitants and the government most proper for them are but a sample from 
the three oldest territories: by Governor St. Clair — Carter, Territorial Papers, 
2: 208-9, 458; by Secretary Sargent— ibid. 433, 578, 587, 622; by Andrew 
Ellicott — ibid. 5: 3-4, 131-32; by Secretary of State Timothy Pickering — ibid. 
5: 27, 31, 34; by Judge David Campbell — ibid. 4: 101; by Judge Harry Toulmin 
— ibid. 6: 270. But with such views it is salutary to compare expressions 
of opposition, more or less "popular"; see the Cato West memorial to Con- 
gress on behalf of a "committee" (Governor Sargent alleged, the minority 
of a committee) of inhabitants — ibid. 5: 81; and the reply to Sargent and 
the judges — ibid. 88. 

228 Letter of June 17, 1783— Writings (Fitzpatrick ed.), 27: 16. He lauded 
the class of settlers, emphasized the great advantages of the general plan. 
said nothing on the point of statehood, submitted "the justice and policy of 
the measure to the wisdom of Congress." 



their attempted justification, as minors and incompetents. What 
did Dane, for example, have in mind when he referred in 1824 to 
"the peculiar state of our country in 1787" and "apprehension that 
the territories, or some of them might not be disposed to come into 
the Union as States"? Presumably he was thinking of the Southwest, 
where frontiersmen were exercising the self-government which Jeffer- 
son's ordinance had approved. So far as he referred to the character 
of frontier society, his attitude and the purpose of the Ordinance 
are plain ; and it only remains to consider below whether the fears 
entertained were reasonable, and the action taken therefore excusable. 
Another matter should, however, first be here disposed of : To what 
extent did apprehensions respecting British occupation of the North- 
west posts and Spain's command of the Mississippi enter into the 
fears that dictated adoption of the Ordinance? 

It is impossible to disunite, in the records of the time, fears of in- 
digenous separatism and fears of the force or blandishments of for- 
eign powers. Nevertheless, as factors in our western policy they 
must be separately appraised, and the latter is by far the simpler. 
The only fear was that the "loyalty" of the frontier might be bar- 
terable for favors from the powers across the line ; 229 and this pre- 
supposes the prior existence of serious discontent in our western 

229 Thus, King wrote to E. Gerry: "I . . . am every day more confirmed 
in the opinion that no paper engagements, or stipulations, can be formed 
which will insure a desirable connection between the Atlantic States and 
those which will be erected to the Northwestward of the Apalachian or 
Alleghany Mountains, provided the Mississippi is immediately opened. . . . 
I know not what advantages the Inhabitants of the Western Territory would 
acquire by becoming members of the Confederacy. They will want no pro- 
tection; their location would sufficiently secure them from all foreign 
hostility; the exchange of Merchandize, or commerce, would not be across 
the Apalachian Mountains, but wholly confined to the Mississippi." If, hoic- 
ever, they could be "cut off for a time from any connections, except with the 
old States, across the mountains, I should not despair that a Government 
might be instituted so connecting them with the Atlantic States, as would 
be highly beneficial to them both & promise a considerable trade" — letter of 
June 4, 1786 in C. R. King, Rufus King, 1: 175-78; same, with formal varia- 
tions, in Burnett, Letters. 8: 380-82; italics added. The attitude manifested 
by Monroe in a letter to Jefferson was not very different: "On the part of 
. . . the states upon the Atlantick it is in my opinion their policy to keep 
a prevailing influence upon the Ohio or to the westward. What unites us 
to them or rather they to us when the Mississippi shall be open? Removed 
at a distance from whatever may affect us beyond the water, they will neces- 
sarily be but little interested in whatever respects us; besides, they will 
outnumber us in Congress unless we confine their number as much as possi- 



settlements, since if they were contented, fears would obviously have 
been for Spain and Great Britain rather than ourselves. The prob- 
lem of foreign relations merely envelopes the more fundamental 
domestic problem of the frontier. 

To remove the envelope does not seem difficult. Of course there 
was some western talk of independence. But what sound evidence 
is there that frontiersmen who wished to be rid of distant government 
from the Atlantic ever seriously dreamed that they would be better 
off if ruled from Spain or London?— or even from New Orleans or 
Canada ? It is difficult to believe that such questions have ever merited 
serious consideration. Much of the talk that was reported from the 
West was mere counterfeit. The most interesting was the whispered 
wake left by a few adventurers. Intriguers, and small officials anxious 
to rise, sometimes used it to advance personal ends; petty county 
politicians in Kaskaskia still had resort to this practice years later 
when they admonished Congress to remember the state of European 
affairs, and confessed "a shudder at the horrors which may arise from 
a disaffection in the West" (themselves italicizing the last horrendous 
words). 230 This was nineteen years after the passing of the Ordi- 
nance ; but it is ridiculous only because it was so belated a resort to a 
device unquestionably often earlier used. Of talk which was not 
mere counterfeit the overwhelmingly major portion in the 1780 's — 
and in the late 1790 's when fears of French influence in the Illinois 
Country and of British partisanship in Detroit were rife — was in- 
dubitably of a thoroughly insubstantial nature. There were the 
nameless "man of character" here and "gentleman" there whose 
reports were forwarded; the "leading characters" supposedly im- 
patient to rise ; the inhabitants who were seemingly good and inoffen- 
sive, and mayhap officials, but who had never been naturalized ; the 
"party" that called themselves Sans Culottes and would acknowledge 
no other laws than French ; the local judges who discovered neighbors 
to be "criminals"; the zealous officials who timorously reported that 
only firmness could command silence and obedience ; and there were 
the citizens known at the seat of government who reported all this 

ble. In my opinion this matter should be well investigated before any 
measure is hastily adopted" — letter of Aug. 25, 1785, in Burnett, Letters. 
8: 203. 

230 Philbrick, Laws of Indiana Territory (I. H. C. 21), xlvi n. 1; com- 
pare xxv n. 1. 



when consulted and the other good friends of government who volun- 
tarily reported it. But when all had made their contributions what 
was there? The sum and substance of it all was an ac- 
cumulation of idle rumor and petty gossip, of hysteria spread 
by crackpots, of stories blown by little people anxious to attract 
notice. The fate of adventurers and speculators like Wilkinson 
and Morgan is sufficient evidence of the absence of popular support 
in their foreign associations. 231 

Of course the government of Spain was willing to give some 
encouragement to sentiment for western independence. Of course, 
too, conspirators like Wilkinson were willing to encourage (or to 
seem willing to encourage) subjection to a foreign power. 232 But in 
any actual bargain with either Spain or Great Britain, 233 commit- 
ments would have been necessary, at least in favor of the one and 

23i The question whether Franklin and others would have preferred to 
have the Northwest remain British by the treaty of peace is a totally dif- 
ferent matter. In Mr. T. P. Abernethy's Western Lands and the American 
Revolution (1937), ch. 21, and in P. C. Phillips, The West in the Diplomacy 
of the American Revolution (1913 — University of Illinois Studies in the 
Social Sciences, 2) there are abundant references on that subject. 

Emigration across the Mississippi into Spanish Territory had been going 
on ever since 1763 — See C. W. Alvord and C. E. Carter, The New Regime, 
1165-1161 (I.H.C. 11), xxi — but particularly since 1787, with more or less 
encouragement by the Spanish authorities — cf. Philbrick, Laws of Indiana 
Territory (I.H.C. 21), xxiii, lxxv, ccxvii; C. W. Alvord, Cahokia Records, 
1118-1190 (I.H.C. 2), lxxxiii, cxli-cxliii, and Kaskaskia Records, 1118-1190 
(I.H.C. 5), index s.v. "Emigration of French." But these emigrants were in 
very large part indeed the French settlers of the Illinois Country. Immigra- 
tion of Americans was not permitted. To be sure, George Morgan's con- 
cession at New Madrid in Arkansas was to be settled with Americans, to 
whom various economic privileges were promised. However, he took only 
seventy persons (1789) from Pennsylvania, and they soon returned home 
when he abandoned the project — M. Savelle, George Morgan: Colony Builder 
(1932), 206, 209, 227. A few other persons from the French settlements in 
Illinois went to New Madrid after Morgan had left. 

232 "w. R. Shepherd, "Wilkinson and the Beginning of the Spanish Con- 
spiracy" (1904), in American Historical Review, 9: 490. The fact that 
Dr. Cutler made use, in his arguments with members of Congress, of the 
danger from Spain and Britain — W. P. Cutler, Manasseh Cutler, 1: 303-5 — is 
perhaps good evidence of the strength of these fears; but also perhaps merely 
of his shrewdness in using all levers to move different men. 

233 John Connolly's efforts to interest Kentuckians in an attack on New 
Orleans was seemingly of very scant importance. See M. Savelle, George 
Morgan, 210, 225. As respects the policy of the Spanish government itself 
one is forced to distinguish Floridablanca's vague alternatives (I have not 
seen the Spanish) of (a) "alliance," (b) "placing themselves" — the Ken- 
tuckians — "under the protection of the King," and (c) "union . . . under 
pacts which assure their liberty" — S. F. Bemis, Pinckney's Treaty . . . 
1183-1800 (1926), 146. 



probably also against the other, and there seems to be no reason what- 
ever to believe that the western settlers would have bargained. Though 
Monroe in his gloomiest moments in 1786 imputed to the Jay party a 
willingness to drive the West to independence he certainly was not 
charging them with the desire, or attributing to the West a willing- 
ness, to have it subject to Spain. And though Wilkinson assured 
Spain's representatives at New Orleans that he was "persuaded" 
the people of Kentucky would apply for protection by Spain "as her 
subjects," in his later-written Memoirs he sought to vindicate himself 
against even the charge "of alienating Kentucky from the United 
States, while a prospect of national protection remained," by pro- 
nouncing that to be "as absurd, as the idea of reducing them to the 
vassalage of Spain"; and he then went on to describe "such a propo- 
sition" (meaning possibly only the latter, perhaps both) as "ludi- 
crous," "vain and chimerical," and "a monstrous extravagance." 234 
No doubt they were. As noted above, some persons did join George 
Morgan's colony in Arkansas, though they did not happen to be 
westerners ; 235 they, with possibly a few exceptions of Catholics, would 
certainly have gone to no country with any other intent than that of 
being masters in it. Jefferson's delight over the prospect of Morgan's 
success in attracting thousands was logical. 23 " 

Clearly, then, as already said, there was no independent problem 
of separation springing from the presence of foreign powers beyond 
the frontier ; nor does there seem to be evidence that their presence 
added appreciably to the problm of indigenous separatism, such as 
it actually was. It may therefore be .said that so far as the reasons 
upon which Congress based its abandonment of Jefferson's ordinance 
may have included fears based upon assumptions contrary to the 
propositions stated, they were based upon illusions. Of course, the 
information available to Congress was scant}'. 

The real significance of the western problem lies in the fact that 
the West's "loyalty" was distrusted without regard to the corrupting 
influence of these foreign neighbors. This problem of indigenous 
separatism was a real problem, because more or less definite sentiment 

23* Compare Shepherd, ante n. 232, at 501. 

235 Ante n. 231. Wilkinson defeated Morgan by intrigues at New Orleans 
— Savelle, George Morgan, 215-25. 

286 He wished 100,000 would accept: "It will be the means of delivering 
to us peacefully what might otherwise cost us a war" — Writings (Ford ed.), 
5: 316. 



for independence did exist. It was also very complex ; and it was not 
one of, or located on, the frontier. It existed to at least an equal — 
indeed, properly speaking, to a much greater — extent in the Atlantic 
states ; for it was concerned essentially with states of mind, and these 
were simple on the frontier and complicated in the old states. The 
one definite reality was the desire of the frontiersman to be free of 
remote or unequal government. On the other hand the attitude of 
those he had left behind was a tangle of social prejudices and political 
prepossessions respecting border society, most of which were substan- 
tially unjustified. 

There were various and obvious reasons why border settlers in every 
state were disliked by their fellow citizens who did not wander ; and 
both the dislike and the distrust that is akin to it are spread through 
the literature on the frontier. Some of the reasons for such dislike and 
distrust, as respectable as any of them, are perfectly illustrated by 
remarks which James Kent recorded in his diary when on circuit in 
1800 in western New York. "Jurors and people," he wrote, "looked 
rude in their manners and dress and gave me an unfavorable opinion 
of the morals of the county. ' ' To this confusion of appearances with 
morals he added one of reasoned with purely emotional dislikes in a 
reference to "squatters, insolvent emigrants, and demagogues." 237 
Creditors did have, of course, substantial cause to distrust emigrant 
debtors, and their attitude was spread widely among the propertied 
class, as Judge Kent's remark illustrates — though he should have 
known well the other side of the picture. 238 Space cannot be devoted 
to mere social prejudices; nevertheless their influence was powerful, 
and more pervasive than any reasoned arguments for repressive gov- 
ernment of the frontier. 

There were various other problems that entered into the deter- 
mination of eastern public opinion concerning the frontier, and except 
as regards fugitive debtors the factual basis for judgments upon them 
was both scant and indefinite. It is also true of all these problems, 
with the same exception, that they could not directly or necessarily 
have influenced the choice of a particular type of government for the 

23t J. T. Horton, James Kent (1939), 126 n. 9, 127. See post at notecall 
257. "The people in the Atlantic States have not yet recovered from the 
horror, inspired by the term backwoodsman. This prejudice is particularly 
strong in New England, and is more or less felt from Maine to Georgia" — 
T. Flint, Recollections of the Last Ten Years (1826; ed. 1932), 170. 

238 gee post n. 257. 



western settlements, for both north easterners and southeasterners, re- 
gardless of variant opinions respecting them, wanted a strong territo- 
rial government. But they did undoubtedly enter into, and did give a 
peculiarly speculative basis for, the judgments which easterners 
formed respecting the frontier. Opinions respecting the drainage of 
manpower from Atlantic states, and depreciation of their backlands. 
that might result from opening the Northwest were necessarily specu- 
lative. 239 The fears entertained by northeastern commercial classes 
that a trading outlet down the Mississippi might divert from them a 
trade across the Alleghenies were visionary.- 4 " The problem of ad- 
mitting new states was the greatest single obstacle in organizing the 
federal territory and the new national government. Much more 
strongly than the last preceding problem it had suggested the desira- 
bility of controlling the amount and direction of migration across 
the Ohio. It sharply divided northern and southern statesmen, each 
judging it by the supposed effect of admitting any state upon the in- 
fluence of his own state in federal councils. 211 It gave more concern to 

230 Though they could judge in a general way by the history of their 
own western borders. These fears had not prevented acceptance of Vir- 
ginia's cession, adoption of the land ordinance, nor unanimous approval of 
the Ordinance of 1787. There was, however, some drainage of population, 
and the state lands were long available at lower prices — Cutler, Manasseh 
Cutler, 1: 303 n. and P. J. Treat, The National Land System, 1785-1820 
(1910), 88. But was there a loss of needed manpower or a long-term loss in 
money or sound development? 

Monroe believed that one motive of Jay's supporters was "to throw the 
weight of population eastward and keep it there, to appreciate the vacant 
lands of New York and Massachusetts" — letter of Aug. 13, 1786 to Governor 
Henry — Burnett, Letters, 8: 425. Mr. Bemis thinks it indisputable that this 
consideration determined the vote on the Mississippi question of many east- 
ern delegates in Congress — The American Secretaries of State (1927), 1: 
245. See ante n. 47 and compare cclxxv-vi. 

-40 Many years later, when there were still no railroads but other roads 
were greatly improved, Thomas Hart Benton remarked that the idea of 
sending the products of the West across the Alleghenies was "the conception 
of insanity itself" — Feb. 2, 1830 — -Register of Debates in Congress, 6: pt. 
1, pp. 115-16. 

Rufus King argued the commerce problem at length in a letter of Aug. 
13, 1786 to E. Gerry — Burnett, Letters, 8: 425. He also noted the economic 
loss involved in migration. Referring to the "almost incredible accessions 
of strength" made by the western settlements, he added: "The States situated 
on the Atlantic are not sufficiently populous, and loosing our men, is loosing 
our greatest Source of Wealth" — letter of Sept. 3, 1786 to Jonathan Jackson. 
ibid. 8: 458. 

24i On Vermont compare Madison, letters of Sept. 19, 1780 and Jan. 22, 
1782— Writings (Hunt ed.), 1: 70, 175; Washington, letter of Feb. 11, 1783— 
Writings (Fitzpatrick ed.), 26: 121; Jefferson's letter of July 12, 17S5— Writ- 
ings (Ford ed.), 4: 71; (Federal ed.), 4: 436. There is a brief review of the 



statesmen, and notably to Jefferson, than distinctions between liberal 
and illiberal government of territorial inhabitants.- 42 But no judg- 
ments could have had a more uncertain basis than those incidental 
to any solution of this new-state problem. 243 

No doubt it was the manifest importance of these questions, 
coupled with the lack of factual basis for opinions regarding them, 
that caused them to be so stubbornly contested. 

Let us now return to the question whether the fears that actuated 
Congress in adopting the Ordinance's plan of government were reason- 
able. And the first observation to be made is : that since only three 
years had passed since the territory had been ceded by Virginia, and 
proclamation had been thereafter made that it should ' ' for ever remain 
a part ' ' of the Confederation, it is undesirable to approach the ques- 
tion with any such concepts as "loyalty," "disunion," "secession," 
or "separatism" in mind. Those words are colored by a century and 
more of national union. Unity with the East had been proclaimed, 
but loyalty either to it or to the individual states left behind by emi- 
grants could hardly, in justice, be expected. Loyalty to the Confed- 

whole matter in A. C. Flick, ed.. History of the State of New York (1933-1937), 
3: 307-24, 5: 3-28. 

On Maine see E. Stanwood in Mass. Hist. Soc. Proceedings. 1907-1908: 
at- 124 seq. 

On Kentucky compare Monroe's letter of Aug. 25, 1785 — Writings (Hamil- 
ton ed.), 1:. 107-8. 

On the Northwest Territory compare Monroe's letters of Oct. 19, 17S3 in 
J. A. James, George Rogers Clark Papers, 1781-178.', (I.H.C. 19), 250, also 
of Jan. 19, and July 16, 1786 on his own policy and the policy of his north- 
eastern opponents — Writings (Hamilton ed.), 1: 117-18 and 140-42; St. Clair 
on policy of eastern states — St. Clair Papers. 2: 103; Washington's alternative 
boundary suggestions on a new state, Sept. 7, 1783 — Writings (Fitzpatrick ed. ), 
26: 138, and letter of Nov. 3, 1784— ibid. 486; Nathan Dane's letter of July 
16, 1787— C. R. King, Rufus King. 1: 289. 

-±- Ante cccv seq. 

243 We have seen how stubbornly choice was contested between different 
population formulas, although only guesses were possible (ante cclxxiv-vi) ; 
upon what metempiric arguments Jefferson rested his preference for small 
states, considering the character of the border settlers whom he knew, he 
believed, so well (ante n. 68) ; with what absurd disregard of natural boun- 
daries Congress had originally set its rectangular boundaries of small new 
states (ante at notecall 56) ; and upon what egregiously erroneous judgments 
of western soil Monroe rested his arguments for a few and larger states 
(ante n. 65 and text). As for judging what will be in the future best for 
a given state or territory, that is of course an everyday matter for the 
statesmen of any age, but the basis for judgment is very different today from 
what it was in 1787. And as regards the balance of power in the Confedera- 
tion, it would seem proper to describe it as consisting merely in an absence 
of war. 



eration could not enter into the question of mere governmental inde- 
pendence so long as there was no instigation by, or collusion or alli- 
ance with, or contemplated allegiance to, a foreign power. And the 
other words (often implied, if not explicitly used in discussions of 
western attitudes) are nearly equally misleading. The true question 
was simply whether danger was presented by a supposed disinclination 
of western settlements to accept distant rule from across the mountains. 
There was, to be sure, true separatism in Vermont and Kentucky ; 
but as for any suggestion that their situation might have justified 
what was done in the Northwest Territory, it should suffice to remem- 
ber that the treatment accorded them was the antithesis of that given 
to the federal territory. They were admitted to the Union without 
any prior tutelary government whatever. 

We know the later development of the Northwest Territory ; the 
absence in its history of any disposition to resist even in the slightest 
degree federal control — and of course, even more strikingly, an ab- 
sence of desire to assert independence. But when the Ordinance was 
adopted there were no settlers in the Territory save unlawful in- 
truders on the public lands. The Ordinance's drafters, in reading 
the future, must have based their judgments of what government was 
desirable either upon a necessarily limited acquaintance (unless in 
rare cases) with border settlers, of their own states or of the North- 
west, or upon hearsay. As a matter of fact there was no essential 
difference between the problems of the Ohio border and those of the 
backlands of the Atlantic states ; and the differences between both 
borders and the more settled communities eastward could easily be 

There have existed in later times, and probably existed from 
colonial times onward, misapprehensions regarding border communi- 
ties which were the basis of strong social prejudices against them. 
One of these was a belief that the extreme East and the two western 
borders were very different and that the difference resulted from 
successive and selective concentrations on the two borders of social 
undesirables, who left behind them communities of a completely 
orderly and conservative life. This is a delusion. Millions of Ameri- 
cans now living know that in its late stages all sorts and conditions 
of men moved to the frontier, and all classes were represented in its 
society, though probably in proportion to the isolation of the frontier, 



and so to an increasing degree as one goes backward in time, the 
classes themselves disappeared. There is no reason to believe that the 
situation was ever essentially different. 244 The concentration of un- 
desirables on the frontier was surely vastly less than many imagine, 
and the extreme East was orderly only to a degree that is not to be 
exaggerated. A European official in Philadelphia in 1784 wrote of 
that city that "the great number of emigrants from Europe has filled 
this place with worthless persons to such a degree that scarcely a 
day passes without theft, robbery or even assassination." 245 

Each section's reputation, evidently, depended on the standards 
or prejudices of its critics. Chiefly upon their prejudices, for one 
rarely encounters a comment that impresses one as a measured judg- 
ment. And three prepossessions respecting the frontier have pre- 
vailed very generally: that its inhabitants were shiftless (without 
even such a qualification as "typically") ; that antilegal conduct was 
rampant in its society ; and that the unbridled individualism therein 
prevalent — which explained much of what unlawful conduct there was 
— was necessarily associated in politics with disaffection to the Union. 

This last seems to have been nothing better than exaggeration 
of one thing that was properly disliked and an illogical association of 
it with another thing that was feared. Words of mere dislike or dis- 
trust or social disapprobation of border societies might be underlain 
by any or all of the preceding special assumptions, or might involve 
none that were recognized as separable. No doubt all three preposses- 
sions dominated Richard Henry Lee. When he referred to "the rude 
people" who would probably be "the first settlers there" (he knew, 
of course, pretty well whom the Ohio Company would send out), and 
to "the uninformed, and perhaps licentious people as the greatest 
part of those who go there are," and to "the Sons of Violence" who 
seemed about to wrest from Congress the treasure of the federal 

-■±+ A little illustrative material is gathered together in J. R. Commons 
et al., A Documentary History of American Industrial Society, 2 (1910): ch. 
14-20; A. B. Hart, American History Told by Contemporaries, 3 (1902): 
97-119. The education and great ability of leaders on the first, and in some 
ways perhaps the rudest, frontier can be judged by reading the petitions and 
other documents in S. C. Williams, History of the Lost State of Franklin 
(rev. ed. 1933), 115, 226, 348, 356; and note the debates in same, ch. 21. 

2*5 See the report in 1784 from Philadelphia of Thieriot, Saxon Commis- 
sion of Commerce to the colonies, quoted by Prof. Lingelbach, and through 
him by M. Parrand, The Fathers of the Constitution, 3. 



lands,- 48 one feels that these are no pondered judgments, but merely 
epithets expressive of class prejudice. When Nathan Dane took 
comfort in the arrival at Congress of Richard Henry Lee, whose 
"character," he wrote, "serves to check the feeble habits and lax 
mode of thinking of some of his countrymen" (that is, presumably 
Carrington, chairman of their committee giving final form to the 
Ordinance of 1787), the community of prejudice is plain.- 47 Such an 
attitude contrasted strongly with the fairer attitude of Washington 
and Monroe, 24 * though the latter had gone most of the way with Dane 
in shaping the Ordinance's illiberal governmental scheme. 

A few words may be given to the very common charge that shift - 

246 July 30, 1787 to William Lee, July 15 to Washington, July 14 to 
Francis Lightfoot Lee — Burnett, Letters. 8: 629, 620. In the last he wrote, 
"we have now something to sell that will pay the debt and discharge the 
greatest part of the Taxes, and altho this something is in a fair way of 
being soon wrested from us by the Sons of Violence, yet we have a thousand 
little difficulties that prevent us from selling!" Seemingly, the Sons of 
Violence were the territorial squatters. 

24? And further evidenced by their friendly rivalry in claiming author- 
ship of the clause against impairment of contracts — post n. 363. Eminently 
desirable as that was, the unjust treatment of debtors at the time reveals 
the social prejudices supporting a sound principle. Dane, Lee, and Melancton 
Smith dominated the committee; as Dane wrote, "We ... at last agreed 
on some principles — at least Lee, Smith and myself" — Dane to R. King, July 
16, 1787, Burnett. Letters, 8: 621. Did his reference to "M — s p. system of 
W. government" mean "Monroe's puerile (or pusillanimous) system of west- 
ern government"? It seems quite possible. 

"Patrick Henry and Richard Henry Lee . . . were now [after peace] 
opposing the Revolutionary development as warmly as they had advocated 
the Revolution itself in 1775. Henry and Lee . . . joined hands in an 
effort at a conservative restoration. They were rivals, but they had much in 
common besides their hatred of Jefferson" — J. H. Eckenrode. The Revolu- 
tion in Virginia (1916), 295. 

248 Very notable is Monroe's letter of June 26, 1782 to George Rogers 
Clark, who was then in Kentucky. Monroe was then a member of the 
Virginia Council, interested in securing "some fix'd principle to act on." 
and desirous of rendering such service to the people of Kentucky as his 
position might make possible "when well inform'd of ye temper & tendency 
of things there." He therefore opened a correspondence with Clark, seeking 
information on all things regarding the country and its prospects. His 
letter contained these personal remarks: "I have a particular respect for 
ye exertions of these people & admire & esteem them for that spirit of 
enterprise wh. has so eminently distinguish'd them. ... I have been 
educated to ye. law & my interest & connections are at present in this part 
of ye. country but have some thoughts of turning my attention toward yr. 
quarter & perhaps sometime hence removing thither myself" — J. A. James, 
George Rogers Clark Papers {I.H.C. 19), 68. No man knew more of the 
West or did more for it than Washington. His denunciations of land 
speculators were harsh— Writings (Fitzpatrick ed.), 27: 133, 4S6; 28: 108; but 
in five years preceding enactment of the Ordinance he seems only once to 
have referred to the "lawless Banditti" who were a part of western society 



lessness was a dominant or typical characteristic of the frontier. No 
doubt many pioneers moved with the frontier from one location to 
another so long as they were failures in their last abode, 249 leaving 
behind those who at each stage found sufficient security and content- 
ment to hold them. But the simple fact that behind the ever forward- 
moving line the country was settled and permanently held proves 
the steady presence of "the hardy . . . and stubbornly persistent.'" 250 
No man knew better than Washington the qualities for which life 
on the frontier called, and in one rare instance, the only one in years 
when he characterized its inhabitants, "hardy" was the word he 
chose. 251 Up to the closing of the last frontier "The basis of Western 
life was essentially materialistic ; people went West for land, for 
homes, for wealth. ... The dominant motive was economic; and it 
was probably stronger in the industrious, thrifty, ambitious settlers 
than in their shiftless, migratory predecessors or contemporaries." 252 

(ibid. 27: 163), not as being all of it. In declining in 1787 to give informa- 
tion respecting it for publication in England, he wrote: "The idea ... of 
it being made up of the scum and refuse of the Continent, that the people 
are opposed to Congress, and attached to the British government is of a 
piece with other doctrines and consequent publications which have recoiled 
upon the authors, and which one wou'd think was enough to discourage such 
unfounded and short sighted reports" — ibid. 29: 200. 

249 There is a striking description of such squatters by John M. Peck 
in R. Babcock, Memoir of John Mason Peck (1864), 101 seq. It is quoted 
in C. B. Goodykoontz, Home Missions on the Frontier (1939), at 21-22. 

250 Carl Becker's words — The United States: an Experiment in Democ- 
racy (1920), 7. 

251 Writings (Fitzpatrick ed.), 28: 291. 

252 Goodykoontz, Home Missions on the Frontier, 23. He also quotes— ibid. 
24 — Timothy Dwight: "Under the pressure of poverty, the gaol, and the con- 
sciousness of public contempt, [they] leave their native places, and betake 
themselves to the wilderness"; but he also recognized that the wilderness 
offered hope to "the sober, industrious, and well-disposed" — Travels in New 
England and New York (1821-1822), 2: 459. In petitions from the frontier, 
materialistic motives for migrating seem generally not to have been ad- 
mitted, although in petitions stating wants unsatisfied in the new home they 
were, at least as respects the Illinois Country (post cccli-iii), extremely 
prominent. Occasionally, frankness revealed them as an original motiva- 
tion. For example: "With a desire to provide for Our Respective Families 
We have removed from different parts of the Union and Made Small Im- 
provements in this . . . Territory" — Carter, Territorial Papers, 3: 48. 
"We had No other view in Settling but to Provide for our families: and in 
Some hopes of geting a Piece of Land to Live on" — ibid. 3: 50. "Your Peti- 
tioners is Sensible that the greatest part of the United States have been 
Settled or peopled by Actual Settlers or by Proclamation being Set foarth 
that all Such as Would Venter into the Wilderness and make Improvements 
and Would become Actual Settlers that all Such Should be Intitled to a 
Certain Quantity of land"- — ibid. 3: 54. 



It is manifest that, in general, the shiftless could only have followed 
the strong and dependable who created ahead of them the lure that 
drew the weaker on. It seems equally clear that the former must 
greatly have predominated either in number or influence, for that 
would seem to be an inescapable inference from the rapid develop- 
ment of the country. Free land was for generations an ever available 
escape from frustration. If not the greatest bonanza, in proportion 
to effort, that this country has ever revealed, it was certainly the 
most evident and widespread. For that reason the number of shift- 
less persons seeking to share it may have been greater than those who 
in later generations, as the frontier shrank, sought the same escape 
in successive trials of different jobs or enterprises. No doubt in the 
late 1700 's they were very noticeable in border settlements, but no 
doubt also salvation of insolvents and seeming social inefficients by 
cheap land was a continuous miracle in those same settlements. 253 
To see the failures but overlook the recoveries was mere social 

The problem of lawlessness is much more complicated. Before 
considering how much lawlessness there was, and of what varieties, 
it is well to inquire how much law there was. 

In the Illinois Country and on the Wabash there had been for a 
long time — since 1763 — a paucity, and sometimes a virtual absence, 
of law. For two years, until the British could take possession, the sup- 
posedly French law theretofore administered in those regions remained 
undisturbed. When possession became British the old law continued 
except so far as altered by the British commandant, who did somewhat 
alter it in establishing a court to try "all Causes of Debt and Prop- 

253 The class most heavily handicapped in rising was that of indentured 
servants and redemptioners. Their economic rise is therefore especially 
interesting. For estimates and impressions offered by students with par- 
ticular opportunities to judge see especially A. E. Smith, Colonists in Bond- 
age: White Servitude and, Convict Labor in America. 1607-1776 (1947), 285, 
289, 291, 292, 298-300, 303, 304; R. B. Morris, Government and Labor in 
Early America (1946), 29, 49-50; M. W. Jernegan, Laboring and Dependent 
Classes in Colonial America. 1601 -11 '83 (1931), 45, 56; and authorities cited 
in Jernegan, p. 2 of ch. 3. Note P. A. Bruce, Social Life of Virginia in the 
Seventeenth Century (1927), 99, 100-103, 107; F. H. Hart, The Valley of Vir- 
ginia in the American Revolution. 1768-1783 (1942), 15, 16-19. A man did 
not sign the Declaration of Independence, or become a secretary of Con- 
gress, because he was once a bound servant. Such cases (Smith, 301, Bruce) 
are of significance far beyond what mere numbers would suggest. As re- 
spects Mr. Smith's Maryland land statistics (298-99), surely the significant 
figure is 1269 and not the 241 which he uses. 



erty . . . according to the Laws of England." Under ordinary cir- 
cumstances all of this would have been quite proper under principles 
of international law ; but considering the special circumstances it was 
of doubtful legal basis; for by the proclamation of 1763 Great Britain 
— wholly forgetful of the French settlements in the Illinois Country — 
had left the entire. Northwest outside all provision for civil govern- 
ment in North America, and had turned the rest of the region, tempo- 
rarily, over to the Indians as a hunting ground. And yet, despite 
that, in view of the French appeals for government the ministry in 
London was thinking of law in the region through all the 1760 's, and 
by 1767 was already inclining to the solution, finally adopted in 1774, 
of making it part of Quebec, subject to French law. Outside the Illi- 
nois Country no British law was established beyond provisions for 
taking into custody in forts and other government places in the Indian 
country persons there committing "crimes" or "offences" (under a 
law supposedly nonexistent!) thence to be taken before "the civil 
magistrate of the next adjoining province." 254 

Such was the situation when Virginia occupied Kaskaskia and 
Vincennes. Under her law virtual chaos, tempered by the sense and 
good conduct of the French inhabitants, existed in the Illinois Coun- 
try 255 until her authority ended in January 1782. 2r ' 6 Not even a theo- 

- 5i On the British court: Alvord & Carter, Trade and Politics, 1767-1769 
(I.H.C. 16), 455 seq. (especially 455 n. 1, 463-64). On general British policy: 
C. E. Carter, Correspondence of Gage. 2: 45, 145, 151, 156, 371, 473. On 
colonization plans: Carter, Great Britain and the Illinois Country, 1763- 
177', (1908), ch. 6; C. W. Alvord, The Illinois Country, 1673-1818 (1920), ch. 
14; Alvord & Carter, Trade and Politics, index s.v. "Illinois — colonization," 
notably 197-99, 638; Carter, Correspondence of Gage, 2: 108-9. On the 
Quebec Act: V. Coffin, "The Quebec Act and the American Revolution," 
Yale Review for Aug. 1895, 171 at 173-76; Alvord & Carter, The Critical 
Period. 1763-1765 {I.H.C. 10), xviii-xx, xxv; Alvord, The Illinois Country. 
as above; compare experiments in Upper Louisiana with French and Spanish 
law made by American judges — W. F. English, Pioneer Lawyer and Jurist 
in Missouri (1947), 52, 55-56, 60. On the Indian Northwest: Alvord & 
Carter, The Critical Period. 39-45 for the proclamation, also xviii, 484 n. 1, 
485; Alvord & Carter, The New Regime. 1765-1767 (I.H.C. 11), xvi. 

2 5 5 Carter, The Illinois Country, ch. 4; Alvord, The Illinois Country, 
ch. 13. 

Mr. Dunn has said of Vincennes: "There was the greatest abundance 
of government, for the more the United States neglected them the more 
authority their officials assumed" — Indiana. 188. If this were true of Vin- 
cennes it would be true of the Illinois Country. Dr. Farrand accepted it 
as a correct statement of general conditions — Legislation for the Territories. 
8, and The Fathers of the Constitution. 71. In the writer's opinion the state- 
ment is without evidence to support it. But at any rate it refers to govern- 
ment, not to law. 

256 Created a Virginia county on Dec. 9, 1778, it ceased to exist on Jan. 



retical law thereafter existed anywhere in the Northwest (unless by 
doctrine of international law despite Virginia's renunciation) until 
1787 ; for the Confederation was not a political entity with a law that 
could theoretically extend over the territory when acquired, and the 
ordinance of 1784 had not established any law in the territories. 

This was the situation beyond the Ohio when settlement there 
began. On that frontier, personal freedom was originally not one 
under and regulated by law. It included actual freedom from law. 
We may now return to the question whether the Ohio frontier could 
have been reasonably expected to be — or later, when law had been 
established, actually was — typically or extraordinarily lawless. 

No doubt that border society did include — and no doubt the 
frontier, as it later advanced, carried with it — some fugitives from 
justice, though doubtless, also, most of those would have been fugitives 
from the justice of imprisonment for debt. 257 It is equally certain 
that an element of unruly persons was conspicuous in frontier society. 
Both extreme democrats like Matthew Lyon and sound Federalists 
such as Senator James Ross and Winthrop Sargent so testified. 2RS It 

5, 1782— Hening. Statutes. 9: 552, 10: 303. 388; A. C. Boggess, Settlement 
of Illinois. 9. 

- 5T Cf. Secretary Sargent to Secretary of State. Jan. 8, 1798 — Carter. 
Territorial Papers. 3: 497. Actions of ejectment and debt were as char- 
acteristic of New York in 1800 as they were of every other territory just 
settling into economic stability, and equally characteristic was the migration 
of insolvents to the frontier — cf. Philbrick, Laws of Indiana Territory 
(I.H.C. 21), index s.v. "debtors," and J. T. Horton, James Kent. 51, 144. 

Information regarding bankruptcy (or insolvency) legislation before 
1829 is difficult to locate. According to Dr. Jameson, during the Revolution 
"four of the states ameliorated their laws respecting the imprisonment of 
poor debtors, under which half the population of a prison sometimes con- 
sisted of that class and a case is recorded where seven of them were kept in 
prison for debts aggregating less than seven pounds" — The American Revolu- 
tion Considered as a Social Movement (1926), 119; (1940 repr. ) 76. Had it 
not been for stay-laws and other laws of similar effect during the same 
period, the results of fluctuating and depreciated currency upon debtors 
would have been still more inhuman. The Ohio constitution of 1802 declared 
as a fundamental right that "The person of a debtor, where there is not 
strong presumption of fraud shall not be continued in prison after delivering 
up his estate for the benefit of his creditor" — Art. VIII, Sec. 15. Reform in 
the West continued. See Philbrick, as above, clxx n. 2. In the Atlantic 
states reform was not rapid after the war ended. For the unbelievable 
stupidities and inhumanities of later years see the extremely interesting 
materials in J. B. McMaster, The Acquisition of Political. Social and Indus- 
trial Rights in America (1903), 50-51, 63-66. 

2 - r,s In a letter of Aug. 12, 1801 Lyon wrote to Jefferson: "This Country 
increases fast in population in industry & in Riches & I am pleased to see 
in this County particularly (which was first settled mostly with a kind of 



seems extremely improbable that there could have been at any time 
at any particular part of the old frontier more than a very small 
number of professional criminals of serious types, including inactive 
fugitives. There was not enough valuable movable property, aside 
from horses, to sustain a class of thieves, burglars, or robbers. There 
was nothing whatever to sustain those who practiced refined com- 
mercial crimes. 259 The one great valuable was land, and most of that 
was public, available to squatters of all types with an equal chance 
that the government would capitulate to them as pre-emptioners. 26 " 
Also, if from habit land already owned by other men looked better 
than public land, the law has always made it easier for a bad man 
than a good one to secure another's land by adverse possession of it. 
And if that was not feasible, it could perhaps be secured by fraud, 
perjury, or forgery ; and those who were detected in using those 
weapons, even on a vast scale, were not t