WESTERN ILLINOIS
STATE COLLEGE
LIBRARY
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ILLINOIS COLLECTION
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ILLINOIS. 977.308I29CV.25
ILX C002
THE LAWS OF ILLINOIS TERRITORY, 1809-181
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ILLINOIS
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DOCUMENTS LIB ARY
WESTERN ILLINOIS L , IV.
MACOMB, ILLINOIS
JAN 26 19"
Digitized by the Internet Archive
in 2011 with funding from
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hnois
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COLLECTIONS
OF THE
ILLINOIS STATE HISTORICAL LIBRARY
THE LAWS OF
ILLINOIS TERRITORY
1809-1818
COLLECTIONS
OF THE
ILLINOIS STATE HISTORICAL
LIBRARY
Edited by
JAY MONAGHAN
STATE HISTORIAN
TRUSTEES
ALFRED W. STERN
CLARENCE P. McCLELLAND - BENJAMIN P. THOMAS
Published by the Trustees of the Illinois State Historical Library
in behalf of the State of Illinois
ADLAI E. STEVENSON, GOVERNOR
COLLECTIONS OF THE ILLINOIS STATE HISTORICAL LIBRARY
VOLUME XXV
LAW SERIES VOLUME V
THE LAWS OF ILLINOIS
TERRITORY
1809-1818
Edited With Introduction by
FRANCIS S. PHILBRICK
Emeritus Professor of Law, University of Pennsylvania
Illinois State Historical Library
Springfield, Illinois
1950
Copyright, 1950
BY
The Illinois State Historical Library
(80259- A)
•14
jjocuiiierits
Collection
ILU NO l£>
- W.3&S
CONTENTS Cc
Preface . . . /rr rTT\ xv
Introduction xvii
SECTION I
rff£ TERRITORIAL STATUTES OF 1809-1818
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
fl>
vii
8^337 LIBRAE* --
WESTERN ILLINOIS
UNIVERSITY
MACCMB. ILLINOIS
ILLINOIS HISTORICAL COLLECTIONS
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
SECTION II
THE LEGAL BASIS OF THE TERRITORIAL SYSTEM
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
CONTENTS
VIII. Meaning of "states" in state papers of Confederation era. clxviii
SECTION III
THE ORDINANCE OF 1787
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
ix
ILLINOIS HISTORICAL COLLECTIONS
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
SECTION IV
THE GOVERNMENTAL PLAN OF 1787. ITS RELATION TO
JEFFERSON'S PLAN OF 1784
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
cclxxxvi
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
X
CONTENTS
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
cccxii
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
cccxxxv
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
SECTION V
A REVIEW OF PRIMARY ADMINISTRATIVE PROBLEMS IN
EARLY TERRITORIES UNDER THE ORDINANCE
I. Introduction
Consequences of the Ordinance's imperfect drafting
ccclxxxviii
Inattention to this and to constitutional problems illus-
trated
By opinions of two attorneys general ccclxxxix
By transfer to executive of powers exclusively con-
gressional cccxc
xi
ILLINOIS HISTORICAL COLLECTIONS
II. Territorial executive problems cccxciii
Partly due to geographical conditions cccxcv
Partly to inadequate provision for an acting governor
cccxcvi
' ' 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"
laws
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
xn
CONTENTS
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
cccclii
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
xm
ILLINOIS HISTORICAL COLLECTIONS
THE LAWS OF ILLINOIS TERRITORY, 1809-1818
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
xiv
PREFACE
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
xvi
INTRODUCTION
SECTION I
THE TERRITORIAL STATUTES OF 1809-1818
Few of the statutes in this volume are individually of any par-
ticular interest. There are only thirty-four1 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 18095 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.
xvii
ILLINOIS HISTORICAL COLLECTIONS
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.
II
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 government10) 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.
xviii
INTRODUCTION
mark the oncoming of new social conditions13 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 ones20 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,
cxxxiv-cxliii.
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.
xix
ILLINOIS HISTORICAL COLLECTIONS
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 Territory25 — 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 fees28 — 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.
25 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).
XX
INTRODUCTION
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.
Ill
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.
xxi
ILLINOIS HISTORICAL COLLECTIONS
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.
xxii
INTRODUCTION
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 uprisings43 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 that44)
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
40 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.
xxiii
ILLINOIS HISTORICAL COLLECTIONS
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.
-ty 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.
xxiv
INTRODUCTION
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 1795s2 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),
8.
55 Act of Aug. 24, 1805— ibid. 116, 117; act of Sept. 17, 1807 (revision of
1807)— ibid. 225.
XXV
ILLINOIS HISTORICAL COLLECTIONS
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.
xxvi
INTRODUCTION
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.
xxvii
ILLINOIS HISTORICAL COLLECTIONS
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
terminer.
Unfortunately, the judges of the Northwest Territory (like the
governor61) 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.
xxviii
INTRODUCTION
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-
xxix
ILLINOIS HISTORICAL COLLECTIONS
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,
XXX
INTRODUCTION
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-
laneous.
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.
xxxi
ILLINOIS HISTORICAL COLLECTIONS
ernor St. Clair and Secretary Sargent, but a legal basis for his sug-
gested impeachment09 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.
xxxii
INTRODUCTION
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
xxxiii
ILLINOIS HISTORICAL COLLECTIONS
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 riding77 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
xxxiv
INTRODUCTION
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.
XXXV
ILLINOIS HISTORICAL COLLECTIONS
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.
xxxvi
INTKODUCTION
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
usage.
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.
xxxvii
ILLINOIS HISTORICAL COLLECTIONS
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.
xxxviii
INTRODUCTION
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."0 In other
territories, before or after this, the same tendencies were visible.91
IV
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
xxxix
ILLINOIS HLSTOKICAL COLLECTIONS
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.
Xl
INTRODUCTION
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
xli
ILLINOIS HISTORICAL COLLECTIONS
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.
xlii
INTRODUCTION
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 territories105 — 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,
358.
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.
273-74.
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
xliii
ILLINOIS HISTOKICAL COLLECTIONS
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 territories113 (with some confusion between the attorneys gen-
eral of the latter and the federal attorneys for territories coextensive
with judicial districts11*) — 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.
113 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.
xliv
INTRODUCTION"
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.
I20 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.
xlv
ILLINOIS HISTORICAL COLLECTIONS
VI
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.
xlvi
INTRODUCTION
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,
xlvii
ILLINOIS HISTORICAL COLLECTIONS
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
xlviii
INTRODUCTION
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.
xlix
ILLINOIS HISTORICAL COLLECTIONS
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.
1
INTRODUCTION
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 department145 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 district140 — 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
later.
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.
ILLINOIS HISTORICAL COLLECTIONS
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
1814.
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
unanswerable."
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,
ccccxliii.
lii
INTRODUCTION
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.
liii
ILLINOIS HISTORICAL COLLECTIONS
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.
liv
SECTION II
THE LEGAL BASIS OF THE TERRITORIAL SYSTEM
POWER TO ACQUIRE TERRITORY, POWER TO ESTABLISH
GOVERNMENTS, ADMISSION AND EQUALITY OF STATES
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
lv
ILLINOIS HISTORICAL COLLECTIONS
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 word1 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.
lvi
INTRODUCTION
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.
lvii
ILLINOIS HISTORICAL COLLECTIONS
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-
west.
II
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).
lviii
INTKODTJCTIOISr
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
lix
ILLINOIS HISTOEICAL COLLECTIONS
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.
lx
INTEODUCTION
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.
lxi
ILLINOIS HISTORICAL COLLECTIONS
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.
13 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
lxii
INTRODUCTION
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.
17 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.
lxiii
ILLINOIS HISTORICAL COLLECTIONS
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-
ceptable.
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.
lxiv
INTRODUCTION
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
lxv
ILLINOIS HISTORICAL COLLECTIONS
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-
conditional24 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-
lxvi
INTRODUCTION
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.
lxvii
ILLINOIS HISTORICAL COLLECTIONS
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 party30 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.
lxviii
INTRODUCTION
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
decision.
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.
lxix
ILLINOIS HISTORICAL COLLECTIONS
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 Arote 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.
206-9.
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.
lxx
INTRODUCTION
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,
lxxi
ILLINOIS HISTORICAL COLLECTIONS
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
acquiescence.
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.
lxxii
INTRODUCTION
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.
54 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
lxxiii
ILLINOIS HISTOBICAL COLLECTIONS
The principles then stated regarding the use and government of
ceded territory satisfied the principal conditions — probably fairly well
known through individuals61 — 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.
lxxiv
INTRODUCTION"
III
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.
er> 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."
lxxv
ILLINOIS HISTORICAL COLLECTIONS
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,
lxxvi
INTRODUCTION
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
lxxvii
ILLINOIS HISTORICAL COLLECTIONS
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
possible.
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.
lxxviii
INTKODUCTION
bracketed words, which Maryland deleted as a matter of forensic
tactics.
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:
959.
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
lxxix
ILLINOIS HISTORICAL COLLECTIONS
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
lxxx
INTRODUCTION
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.
lxxxi
ILLINOIS HISTORICAL COLLECTIONS
western lands77 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.
lxxxii
INTRODUCTION
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 assumed85 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
lxxxiii
ILLINOIS HISTORICAL COLLECTIONS
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.
lxxxiv
INTKODUCTIOlSr
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.
lxxxv
ILLINOIS HISTORICAL COLLECTIONS
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.
lxxxvi
INTRODUCTION
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.
lxxxvii
ILLINOIS HISTORICAL COLLECTIONS
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 writer101 in support of Mr.
icoDred Scott v. Sandford (1857), 19 How. (60 U. S.) 393, 434-35; italics
added.
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
lxxxviii
INTRODUCTION
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.
lxxxix
ILLINOIS HISTOEICAL COLLECTIONS
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-
XC
nSTTEODUOTION"
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.
xci
ILLINOIS HISTORICAL COLLECTIONS
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.
xcii
INTKODUCTION
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.
xciii
ILLINOIS HISTORICAL COLLECTIONS
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.
IV
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 approved110 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.
xciv
INTRODUCTION
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
government.
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
necessity.
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.
xcv
ILLINOIS HISTORICAL COLLECTIONS
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 opinion116 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.
xevi
INTRODUCTION
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
seen118 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.
xcvii
ILLINOIS HISTOKICAL COLLECTIONS
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'
History.
xcviii
INTBODUCTION
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-
xcix
ILLINOIS HISTOKICAL COLLECTIONS
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.
INTRODUCTION
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 adopted12" 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.
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ILLINOIS HISTORICAL COLLECTIONS
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
established.
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
Congress.
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
cii
INTRODUCTION
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
men.
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.
ciii
ILLINOIS HISTORICAL COLLECTIONS
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.
civ
INTBODUCTION
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
V
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.
CV
ILLINOIS HISTOEICAL COLLECTIONS
"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.
cvi
INTRODUCTION
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."
cvii
ILLINOIS HISTORICAL COLLECTIONS
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.
cviii
INTRODUCTION
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
cix
ILLINOIS HISTORICAL COLLECTIONS
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.
CX
INTRODUCTION"
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.
cxi
ILLINOIS HISTORICAL COLLECTIONS
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.
cxii
INTEODUCTION
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 1787155 — 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.
157 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.
cxiii
ILLINOIS HISTORICAL COLLECTIONS ■
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.
cxiv
INTRODUCTION
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.
CXV
ILLINOIS HISTORICAL COLLECTIONS
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.
cxvi
INTRODUCTION
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.
cxvii
ILLINOIS HISTOKICAL COLLECTIONS
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.)
cxviii
INTRODUCTION"
"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-
tion172 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.
cxix
ILLINOIS HISTORICAL COLLECTIONS
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
Confederation?
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 1789170 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.
cxx
INTRODUCTION"
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
cxxi
ILLINOIS HISTORICAL COLLECTIONS
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.
cxxii
INTRODUCTION
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.
cxxiii
ILLINOIS HISTORICAL COLLECTIONS
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
cxxiv
INTRODUCTION
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.
cxxv
ILLINOIS HISTORICAL COLLECTIONS
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 Taney180 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.
cxxvi
INTRODUCTION
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.
193 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.
cxxvii
ILLINOIS HISTORICAL COLLECTIONS
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
in5 See Ante xciv-v, xcviii.
iffi 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
safety.
cxxviii
INTRODUCTION
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.
cxxix
ILLINOIS HISTORICAL COLLECTIONS
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.
VI
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.
cxxx
INTRODUCTION
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
pxxxi
ILLINOIS HISTORICAL COLLECTIONS
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
states.
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.
oxxxii
INTRODUCTION
the territories are subject to constitutional restrictions under the first
nine amendments that admittedly control it within the limits of the
states.
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.
cxxxiii
ILLINOIS HISTORICAL COLLECTIONS
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.
cxxxiv
INTRODUCTION
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.
cxxxv
ILLINOIS HISTOBICAL COLLECTIONS
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.
cxxxvi
INTRODUCTION
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 statute220 — 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.
cxxxvii
ILLINOIS HISTORICAL COLLECTIONS
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.
cxxxviii
INTRODUCTION
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.
exxxix
ILLINOIS HISTORICAL COLLECTIONS
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
cxl
INTRODUCTION
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.
cxli
ILLINOIS HISTORICAL COLLECTIONS
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.
cxlii
INTRODUCTION
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.
cxliii
ILLINOIS HISTORICAL COLLECTIONS
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.
cxliv
INTRODUCTION
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.
cxlv
ILLINOIS HISTORICAL COLLECTIONS
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
INTRODUCTION
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.
cxlvii
ILLINOIS HISTORICAL COLLECTIONS
territorial inhabitants (except to protect them) or that its powers in
the territories were at lea.st 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.
cxlviii
INTRODUCTION
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.
cxlix
ILLINOIS HISTORICAL COLLECTIONS
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.
el
INTRODUCTION
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
cli
ILLINOIS HISTORICAL COLLECTIONS
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.
clii
INTRODUCTION
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.
cliii
ILLINOIS HISTOEICAL COLLECTIONS
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.
cliv
INTRODUCTION
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.
civ
ILLINOIS HISTORICAL COLLECTIONS
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.
clvi
INTRODUCTION
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
VII
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. -
clvii
ILLINOIS HISTORICAL COLLECTIONS
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.
clviii
INTRODUCTION
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).
clix
ILLINOIS HISTORICAL COLLECTIONS
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.
-Ti 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).
clx
INTRODUCTION
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
clxi
ILLINOIS HISTORICAL COLLECTIONS
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.
clxii
INTRODUCTION
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 given28-' — 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.
clxiii
ILLINOIS HISTORICAL COLLECTIONS
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.
elxiv
INTRODUCTION
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 Acts288 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
286 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
13).
2"' May 10, 1786— ibid. 255; italics added.
290 See post eclxxxvi-xevi.
clxv
ILLINOIS HISTORICAL COLLECTIONS
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.
clxvi
INTRODUCTION
The express provisions of the Ordinance, then, quite as was re-
quired b3r 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.
clxvii
ILLINOIS HISTORICAL COLLECTIONS
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 being1 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.
VIII
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.
clxviii
INTRODUCTION
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.
clxix
ILLINOIS HISTORICAL COLLECTIONS
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.
clxx
INTRODUCTION
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.
clxxi
ILLINOIS HISTORICAL COLLECTIONS
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.
clxxii
INTRODUCTION
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
control.
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
seq.)
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.
elxxiij
ILLINOIS HISTORICAL COLLECTIONS
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 enactment315 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.
clxxiv
INTRODUCTION
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-
clxxv
ILLINOIS HISTORICAL COLLECTIONS
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 inhabitants310 "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.
clxxvi
INTRODUCTION
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-
clxxvii
ILLINOIS HISTORICAL COLLECTIONS
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
ancestors.
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
system.
*o See W. W. Willoughby, Constitutional Lair (2d ed.), 1: ch. 30, 31, 32.
clxxviii
SECTION in
THE ORDINANCE OF 1787
ITSELF A STATUTE OR A CONSTITUTION?
RELATION TO CONSTITUTION OF THE UNITED STATES
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.
clxxix
ILLINOIS HISTORICAL COLLECTIONS
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 bj7 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.
clxxx
INTRODUCTION
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
ILLINOIS HISTOKICAL COLLECTION'S
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.0 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" states11 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-
ment.
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 states13 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
clxxxii
INTRODUCTION
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
II
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
clxxxiii
ILLINOIS HISTORICAL COLLECTIONS
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.)
16in 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.
clxxxiv
INTRODUCTION
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 conservatives21 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.
clxxxv
ILLINOIS IIISTOEICAL COLLECTIONS
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.-"
Ill
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.
clxxxvi
INTRODUCTION
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."
clxxxvii
ILLINOIS HISTORICAL COLLECTIONS
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.
clxxxviii
INTRODUCTION
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.
IV
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
clxxxix
ILLINOIS HISTORICAL COLLECTIONS
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
exc
INTRODUCTION
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.
exci
ILLINOIS HISTORICAL COLLECTIONS
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
plain.
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, shal1. 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.
cxcii
INTRODUCTION
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
Union.
cxciii
ILLINOIS HISTORICAL COLLECTIONS
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.
cxciv
INTRODUCTION
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
cxcv
ILLINOIS HISTORICAL COLLECTIONS
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]
cxcvi
INTRODUCTION
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
consequences.
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
cxcvii
ILLINOIS HISTORICAL COLLECTIONS
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).
cxcviii
INTRODUCTION
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-
cxcix
ILLINOIS HISTORICAL COLLECTIONS
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.
CC
INTRODUCTION
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
unity.
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
cei
ILLINOIS HISTORICAL COLLECTIONS
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
Congress.
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.
ccii
INTRODUCTION
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.
cciii
ILLINOIS HISTORICAL COLLECTIONS
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.
cciv
INTRODUCTION
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.
ccv
ILLINOIS HISTORICAL COLLECTIONS
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
ccvi
INTRODUCTION
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.
ccvii
ILLINOIS HISTOEICAL COLLECTIONS
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-
ccviii
INTRODUCTION
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-
ccix
ILLINOIS HISTORICAL COLLECTIONS
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.
ccx
INTRODUCTION
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
ccxi
ILLINOIS HISTORICAL COLLECTIONS
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.
7i 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.
ccxii
INTRODUCTION
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 admission74 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.
ccxiii
ILLINOIS HISTORICAL COLLECTIONS
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.
ccxiv
INTRODUCTION
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 proj
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
significance.
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-
ccxv
ILLINOIS HISTORICAL COLLECTIONS
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 state86 — 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
ccxvi
INTRODUCTION
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
ccxvii
ILLINOIS HISTORICAL COLLECTIONS
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.
ccxviii
INTRODUCTION
Ordinance after admission of a state.01 This is subject to a slight ex-
ception. "To the extent that.it 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
ccxix
ILLINOIS HISTORICAL COLLECTIONS
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
territories.
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
ccxx
INTRODUCTION
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 180505 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, 1811nG 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, 18129T 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.
ccxxi
ILLINOIS HISTORICAL COLLECTIONS
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.
ccxxii
INTRODUCTION
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.
ccxxiii
ILLINOIS HISTORICAL COLLECTIONS
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
ccxxiv
INTRODUCTION
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.
ccxxv
ILLINOIS HISTORICAL COLLECTIONS
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.
ccxxvi
INTRODUCTION
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.
ccxxvii
ILLINOIS HISTORICAL COLLECTIONS
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-
enforcement.
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.
1783113 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.
ccxxviii
INTRODUCTION
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 slavery110 — if, indeed, that had violated the
condition.
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
violation.
ccxxix
ILLINOIS HISTORICAL COLLECTIONS
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.
ccxxx
INTRODUCTION
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.
ccxxxi
ILLINOIS HISTORICAL COLLECTIONS
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.
ccxxxii
INTRODUCTION
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 territory125 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;
ccxxxiii
ILLINOIS HISTORICAL COLLECTIONS
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.
ccxxxiv
INTKODUCTION
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
cccxxxv
ILLINOIS HISTOEICAL COLLECTIONS
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.
ccxxxvi
INTRODUCTION
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
ccxxxvii
ILLINOIS HISTORICAL COLLECTIONS
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-
west.
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;i7 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.
ccxxxviii
INTRODUCTION
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.
ccxxxix
ILLINOIS HISTORICAL COLLECTIONS
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
ccxl
INTRODUCTION
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.
I4* 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).
ccxli
ILLINOIS HISTORICAL COLLECTIONS
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.
ccxlii
INTRODUCTION
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).
ccxliii
ILLINOIS HISTOEICAL COLLECTIONS
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
compact.
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.
ccxliv
INTKODTTCTION
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-
ferent.
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.
ccxlv
ILLINOIS HISTORICAL COLLECTIONS
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 lawrs 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.
ccxlvi
INTRODUCTION
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
ccxlvii
ILLINOIS HISTORICAL COLLECTIONS
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 sense164 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.
ccxlviii
INTRODUCTION
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
inhabitants.
167 Oct. 7, 1795— Carter, Territorial Papers. 3: 443
is* Ibid. Italics added.
ccxlix
SECTION IV
THE GOVERNMENTAL PLAN OF THE ORDINANCE OF 1787
ITS RELATIONS TO JEFFERSON'S PLAN OF 1784
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,
eel
INTRODUCTION
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.
ccli
ILLINOIS HISTORICAL COLLECTIONS
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
Howard.
cclii
INTRODUCTION
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
ccliii
ILLINOIS HISTORICAL COLLECTIONS
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
should5 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 governments7 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.
ccliv
INTEODUCTION
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.
cclv
ILLINOIS HISTORICAL COLLECTIONS
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
eclvi
INTRODUCTION
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 there16 "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.
eclvii
ILLINOIS HISTORICAL COLLECTIONS
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 liberty17 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 ordinance3" 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
cclviii
INTRODUCTION
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 not22), 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.
cclix
ILLINOIS HISTORICAL COLLECTIONS
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:
343-44.
-• Jour. Cont. Cong. 26: 118, 246 seq., 275-79.
cclx
INTRODUCTION
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.
cclxi
ILLINOIS HISTORICAL COLLECTIONS
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.
cclxii
INTRODUCTION
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
impracticable.
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.
s9 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.
cclxiii
ILLINOIS HISTORICAL COLLECTIONS
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.
cclxiv
INTRODUCTION
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
43 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),
17-29.
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
cclxv
ILLINOIS HISTORICAL COLLECTIONS
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-
cclxvi
INTRODUCTION
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.
cclxvii
ILLINOIS HISTORICAL COLLECTIONS
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.
cclxviii
INTRODUCTION
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
Union.
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
eclxix
ILLINOIS HISTORICAL COLLECTIONS
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.
eclxx
INTRODUCTION
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,
cclxxi
ILLINOIS HISTORICAL COLLECTIONS
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
cclxxii
INTRODUCTION
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.
cclxxiii
ILLINOIS HISTORICAL COLLECTIONS
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.
cclxxiv
INTEODUCTION
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.
cclxxv
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
appear.
-s Sept. 19, 1786— Jour. Cont. Cong. 31: 672.
cclxxvi
INTRODUCTION
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.
cclxxvii
ILLINOIS HISTORICAL COLLECTIONS
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.
cclxxviii
INTRODUCTION
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.
cclxxix
ILLINOIS HISTORICAL COLLECTIONS
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.
cclxxx
INTRODUCTION
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.
cclxxxi
ILLINOIS HISTORICAL COLLECTIONS
Confederation, and in this respect the Ordinance was an addendum
to the Articles92 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.
II
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:
16.
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.
cclxxxii
INTRODUCTION
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 :
whereupon,
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.
cclxxxiii
ILLINOIS HISTORICAL COLLECTIONS
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
seq.
cclxxxiv
INTRODUCTION
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.
cclxxxv
ILLINOIS HISTORICAL COLLECTIONS
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
unfortunate.
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.
cclxxxvi
INTRODUCTION
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 view7 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.
cclxxxvii
ILLINOIS HISTORICAL COLLECTIONS
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.
eclxxxviii
INTRODUCTION
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.
115 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).
cclxxxix
ILLINOIS HISTORICAL COLLECTIONS
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 phraseology119 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.
C43XC
INTRODUCTION
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.
ccxci
ILLINOIS HISTORICAL COLLECTIONS
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
ccxcii
INTRODUCTION
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'
ccxciii
ILLINOIS HISTORICAL COLLECTIONS
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 ordinance131 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.
ccxciv
INTRODUCTION
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
ccxcv
ILLINOIS HISTORICAL COLLECTIONS
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
ccxcvi
INTRODUCTION
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.
is8 Ibid. The vote was not recorded.
ccxcvii
ILLINOIS HISTORICAL COLLECTIONS
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
paragraph.
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.
ccxcviii
INTRODUCTION
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
I40 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.
ccxcix
ILLINOIS HISTORICAL COLLECTIONS
. . . 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] country144 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.
ccc
INTRODUCTION
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
live!
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.
ccci
ILLINOIS HISTORICAL COLLECTIONS
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:
144.
iso Letter to Jefferson, Jan. 19, 1786 — ibid. 285.
i5i Ante n. 111.
152 Aug. 24, 1786— Jour. Cont. Cong. 31: 563.
cccii
INTRODUCTION
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.
ccciii
ILLINOIS HISTOKICAL COLLECTIONS
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-
ber159) 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
powers?
ccciv
INTRODUCTION
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 passed100 — 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.
CCCV
ILLINOIS HISTORICAL COLLECTIONS
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
friends164 — 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.
cccvi
INTRODUCTION
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
296.
cccvii
ILLINOIS HISTORICAL COLLECTIONS
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
cccviii
INTRODUCTION
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.
Ill
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.
cccix
ILLINOIS HISTORICAL COLLECTIONS
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
compacts.
cccx
INTRODUCTION
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.
179 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).
cccxi
ILLINOIS HISTORICAL COLLECTIONS
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.
cccxii
INTRODUCTION"
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.
cccxiii
ILLINOIS HISTORICAL COLLECTIONS
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.
cccxiv
INTRODUCTION
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.
cccxv
ILLINOIS HISTORICAL COLLECTIONS
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.
cccxvi
INTRODUCTION
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 and1 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).
cccxvii
ILLINOIS HISTORICAL COLLECTIONS
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
cccxviii
INTRODUCTION
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.
cccxix
ILLINOIS HISTORICAL COLLECTIONS
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
cccxx
INTBODUCTION
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
cccxxi
ILLINOIS HISTORICAL COLLECTIONS
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.
cccxxii
INTRODUCTION
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:
xciv.
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
cccxxiii
ILLINOIS HISTORICAL COLLECTIONS
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
IV
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.
cccxxiv
INTRODUCTION
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.
cccxxv
ILLINOIS HISTORICAL COLLECTIONS
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.
cccxxvi
INTRODUCTION
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 in 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.
cccxxvii
ILLINOIS HISTORICAL COLLECTIONS
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."
cccxxviii
INTRODUCTION
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-
cccxxix
ILLINOIS HISTORICAL COLLECTIONS
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.
cccxxx
INTRODUCTION
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.
cccxxxi
ILLINOIS HISTORICAL COLLECTIONS
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.
cccxxxii
INTRODUCTION
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.
cccxxxiii
ILLINOIS HISTORICAL COLLECTIONS
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
cccxxxiv
INTRODUCTION
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.
cccxxxv
ILLINOIS HISTORICAL COLLECTIONS
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
exaggerated.
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,
cccxxxvi
INTRODUCTION
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.
cccxxxvii
ILLINOIS HISTORICAL COLLECTIONS
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
cccxxxviii
INTRODUCTION
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.
cccxxxix
ILLINOIS HISTORICAL COLLECTIONS
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
prejudice.
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.
cccxl
INTRODUCTION
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-
try255 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.
255 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.
cccxli
ILLINOIS HISTORICAL COLLECTIONS
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
cccxlii
INTRODUCTION
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 treated as criminals, at least
in Illinois and Missouri ; the worst of them held public offices.261
Arabs from the back part of the Carolinas) that civilization is fast gaining
ground, many of the Idle & dissolute have gone to the Spanish dominions
& their places have been filled up by people of more property & more industry;
people possessed of some knowledge of the Comforts of civilized life and the
benefits of commerce" — Library of Congress: Jefferson Papers, (transcript
read in State Department).
James Ross wrote to Winthrop Sargent in 1797 of Jefferson County,
Northwest Territory, newly created: "A Court has been held. & . . . the
conduct of the Court & particularly of Mr. Wells was such as to empress
every one with an opinion that the laws must be obeyed. A Number of the
lawless will go still farther west in search of a region where, like the
savages of the wilderness, they may live without restraint & we shall be
well rid of such company" — Pittsburgh, Dec. 22, 1797, National Archives:
Territorial Papers (transcript read in State Dept.). On Wells see Carter,
Territorial Papers, 3: 476-77, 524. Sargent is quoted post n. 293.
General Parsons, doubtful whether the united states would realize bene-
fits from western lands, wrote on Dec. 3, 1785: "The population of the country
on the east of the Ohio, their views and conduct, you have no conception of;
and I wish those views may not be extended further than the present settlers"
— C. S. Hall, Life and Letters of Samuel Holclen Parsons, 479. Very likely, the
"views" referred to were similar to those held by the few i^ecalcitrant
squatters west of the Ohio who had been dispossessed by an army detach-
ment in April 1785— see W. H. Smith, St. Clair Papers. 2: 3-5; A. B. Hulbert,
Ohio in the Time of the Confederation, 98-109. See post cccxlvi-vii.
259 philbrick, Laics of Indiana Territory (I.H.C. 21), cxxvi-cxxvii, clxxi-
clxxxv.
260 There had been various state pre-emption laws in colonial time, and
others after the Revolution. Squatters knew perfectly well the likelihood
of gaining their end on easy terms, and petitioned Congress from the begin-
ning of their settlements west of the Ohio (e.g. the petition of April 11,
1785 in A. B. Hulbert, Ohio in the Time of the Confederation, at 105) onward.
^6i Philbrick. Laics of Indiana Territory (I.H.C. 21), lxv seq. (par-
ticularly lxxx-xc) and clxxix.
cccxliii
ILLINOIS HISTORICAL COLLECTIONS
It would be a mistake, then, to be led by the picturesqueness of
border lawlessness to exaggerate the number of criminals or of varie-
ties of crime on the frontier. But the unruly element of its society,
above referred to, while probably a very small part of the population
in any but the very earliest years of settlement, was doubtless every-
where represented, and it was this element that gave the frontier its
bluster, color, deeds of brutality and violence, and consequently its
ill repute.
We know of the Northwest Territory — and it seems impossible to
believe that the frame rs of the Ordinance should not have known the
same to be true of the western settlements of their respective states —
that as soon as there existed any border settlements meriting that
name there was always a decided majority of those whose habits of
social order held society together. This better element of society
resented exaggerated reports of the lawlessness of their settlements.26'
They did, in fact, tolerate a vast amount of violence that people from
older communities, where such conduct was rare, would have assumed
to be outside the law, though most of it was for all practical purposes
within it. It was condoned by the mores of the border, and that
fact put it beyond judicial correction, because of two principles,
centuries old, of the common law. This was true, for example, of
gouging, biting, and other brutalities whenever a plea was available
of self-defense when attacked or of license in contests of strength and
skill. The Ordinance was passed, the common law introduced, special
statutes were sooner or later passed against riots, dueling, mayhem,
and so on ; but under most of them no indictments were ever brought,
and in those for aggravated batteries ridiculously small fines were im-
posed.263 The same principles of law would have applied in the
Atlantic states ; the outcome would in very many cases have been the
-fi- The inhabitants of Shawneetown produced with evident travail a
protest to Matthew Lyon: "We must beg leave to make mention with dif-
fidence least a misconception be prepossessed from misrepresentations that
there are amongst our number both Moral and Relidgeous as well as many
enterprising and industrious people" — letter of Nov. 13, 1809, in National
Archives: Territorial Papers (transcript read in State Dept.).
2«3 On crimes, statutory penalties, and actual treatment see Philbrick.
Laws of Indiana Territory (I.H.C. 21), cxxvi-cxxvii, clxxi-clxxxi, ccxxiv.
This careful analysis of statutes and court records is presumably fairly rep-
resentative of the general situation in the first decade of the early border.
The situation fifty years later was very different as respected property,
crime, and courts.
cccxliv
INTRODUCTION
same. But in fact, though it sounds paradoxical, because there was
more of this type of violence on the border it was less likely to be
dealt with by law. For its abundance indicated the local mores as
favorable to it ; and, consequently, peace officers were less likely to
act against it, and juries less likely to give verdicts for damages or of
guilt in prosecutions for crimes. To a layman such tolerance may
seem merely to illustrate the truth of Garrick's adage that a fellow-
feeling makes us wondrous kind — and it does ; but it also illustrates
the important fact that the only law enforced is what the public
desires; that law must be near to the people.
But, in this respect, was the attitude of those who repudiated
Jefferson's ordinance justified? Yes, and no. As regarded the fault
to he guarded against, yes : these community practices, as respects
their frequency and aggravated character, were the very "depravity
of manners" of which Duane's committee complained in October 1783.
It was the very conduct which called for the protection of "pur-
chasers and inhabitants ' ' ; which necessitated a government that
would establish "order and the true principles of government." On
the other hand, as respects the question whether the Ordinance was
a necessary or a proper guard against the frontier's "depravity of
manners, ' ' the answer is no ; — and for two reasons. The first is that
just explained : that the statute book never cured the violence of any
frontier, nor did the titles and mere presence of peace officers, but
only the changing manners of society. When the change had come
the routine action of officers and juries registered it.
The second reason is that, as already remarked, it is illogical
to assume that the noisy individualism that was expressed in the
lawlessness just considered had any necessary relation to disaffection
for the Union. Such an assumption supposes the border population
to have lived in such a rage of disorder that they would bear the
yoke of no government, nor therefore enter the Confederation. In
truth, what the Watauga associates said in their petition of 1776 to
the North Carolina assembly expressed the attitude of every frontier
community, for in every one of them people of stable habits soon
established their dominance. It was this :
Finding ourselves on the Frontiers, and being apprehensive
that, for the want of a proper legislature, we might become a shelter
for such as endeavoured to defraud their creditors; considering also
cccxlv
ILLINOIS HISTORICAL COLLECTIONS
the necessity of recording Deeds, Wills, and doing other public busi-
ness; we, by consent of the people, formed a court for the purposes
above mentioned, taking (by desire of our constituents) the Virginia
laws for our guide, so near as the situation of affairs would admit.264
Consider, as another example, the unlawful intruders on the
public domain who had crossed the Ohio by the spring of 1785. Some
few hundreds of these (out of uncertain thousands) were evicted at
that time from the bottoms between Fort Mcintosh and Wheeling.
Among them was one individualist who, after having seemingly re-
ceived legal advice, proclaimed "that all mankind agreeable to every
constitution formed in America" — and two literally supported him26"'
— "have an undoubted right to pass into every vacant country, and
there to form their constitution"; also that Congress had no power
under the Articles of Confederation to forbid them to do so, or to
sell the land ;26'! and probably very few historians are even today en-
tirely clear why it was that Congress had the power otherwise.267
There was one other man. too, who threatened forcible resistance to
eviction under orders of Congress. The young officer reported to
Colonel Harmar the opinion of "many sensible men" east of the Ohio
("reputable inhabitants," Harmar called them in a letter to Con-
gress) that only prompt action by that body could prevent settlement
of the country west of the river "by a banditti whose actions [were]
a disgrace to human nature."268 But, clearly, there is something
wrong with that epithet. These were pioneers, though not of the type
of Daniel Boone. Yet even of them some had already elected justices
of the peace. Moreover, though the above proclamation was "posted
?6* J. G. M. Ramsey, The Annals of Tennessee to the End of the Eigh-
teenth Century (1853), 136.
265 Namely those of Vermont and Pennsylvania; see nn. 263, 305 of Sec.
II. Originally no distinction was made between unsettled lands "outside"
or manifestly inside a state (for could there be any outside until after
1784?). But when separatism threatened the great states, Pennsylvania made
it treason by an act of 1782 to erect an independent government within her
limits — The Statutes at Large of Pennsylvania. 11 (1906): 14; and Virginia
did the same in 1785 — Hening. Statutes, 12: 41.
266 gee the "Advertisement" of John Amberson in St. Clair Papers. 2: 5
or A. B. Hulbert, Ohio in the Time of the Confederation. 98-99.
267 Ante Ixxvii seq.
268 Ensign Armstrong's letter (n.d. ) to Governor St. Clair, in W. H.
Smith, St. Clair Papers. 2: 4. "Banditti" was seemingly a popular word.
Washington used it once in 1783 — ante n. 248. Lord Dartmouth wrote to
General Gage of Vincennes in 1773: "seeing that the inhabitants there no
longer appear to be a lawless vagabond Banditti, as they have been repre-
sented to be," etc. — C. E. Carter, Correspondence of General Gage. 2: 157.
cccxlvi
INTRODUCTION
up in nearly every settlement on the western side of the Ohio," in-
viting the people to elect on a common day delegates to form a con-
stitution and state, nothing came of it ; at least a portion of them
joined instead in a memorial to Congress.269 All within the district
in question — certainly at least a few hundred persons — after their
homes had been destroyed, moved back across the Ohio, having per-
mitted an ensign with a detachment of twenty soldiers to dispossess
them.270
There seems to be no reason whatever to attribute to the North-
west an unwillingness to accept the rule of the Union.-71 The federal
government had never oppressed them. It offered them satisfaction
of all their hopes. It was the states that had created in their western
portions resentment and political unrest. Shays' Rebellion took
place in a state amid whose ruling class such a mind as Fisher Ames's
could be at ease.272 The western border from Maine to the backlands
of South Carolina had suffered from political and economic discrimi-
nation,273 and its inhabitants doubtless left for the new federal terri-
tories with hopes that must have been heightened by their conscious-
ness of the unjust opinions entertained of them by their more eastern
fellow citizens.274 The truth is that the settlers of the Northwest
-'en Hulbert, op. cit. at 103-6.
-70 Colonel Harmar to Congress, May 1. 1785 and Armstrong letter cited
ante n. 268 — W. H. Smith, St. Clair Papers. 2: 3-4; formal report of April
12 by Ensign Armstrong to Colonel Harmar in A. B. Hulbert, op. cit. 106-9.
27i Nor to the Southwest — S. C. Williams, The Lost State of Franklin.
49 n. 6.
272 He wrote, for example, on June 11, 1789 from Congress to Thomas
Dwight (compare n. 301 post) : "Mr. Madison has introduced his long ex-
pected amendments. . . . He has hunted up all the grievances and com-
plaints of newspapers, all the articles of conventions, and the small talk of
their debates. It contains a bill of rights, the right of enjoying property,
of changing the government at pleasure, freedom of the press, of conscience,
of juries, exemptions from general warrants, gradual increase of repre-
sentatives. . . . Oh! I had forgot, the right of the people to bear arms.
Risum teneatis amici?" — Works (1854), 1: 52-53.
-'7 3 f. J. Turner, The Frontier in American History (1920), 110-24; W. A.
Schafer, "Sectionalism and Representation in South Carolina," Amer. Hist.
Assoc. Report. 1900, 1: 324, 353, 400-437; J. S. Bassett, "The Regulators of
North Carolina, 1765-1771," ibid. 1894, pp. 150-55, 160, 162-63, 165, 208, 211-12;
C. H. Lincoln, Revolutionary Movement in Pennsylvania (University of
Pennsylvania, Publications . . . History, 1896), ch. 3-4; W. R. Shepherd,
The History of Proprietary Government in Pennsylvania (Columbia Uni-
versity Studies in History. 1S96), 546-48; M. Farrand, "The West and the
Principles of the Constitution." Yale Rev. 17 (old series, 1908-1909): 44-58;
E. B. Greene, The Revolutionary Generation (1943), 166-68 and 407-11.
274 Judge Williams states that language used in the debate over North
cccxlvii
ILLINOIS HISTOKICAL COLLECTIONS
would naturally accept the Union for two reasons : one, because
many of them looked upon the states they had left as oppressors,
and upon the Union as offering them succor from the past and promise
for the future ; another, because they came from different states.
A petition from Kentuckians, praying for independence, was directed
in 1782 to Congress because, the petitioners said, they owed no alle-
giance to Virginia, whose charter the Revolution had abrogated, but
acknowledged allegiance to the united states upon which the rights
of the Crown had devolved. Whatever might be said of the merits of
these legal propositions275 there underlay them the important fact that
men who deserted one or another of the Atlantic states never ceased
to think of themselves as Americans. It seems probable that after
the first decade in Kentucky and Tennessee no small border settlement
would have lacked representation of at least two states, and as time
passed the number represented greatly grew. Frontier sentiment was
always nationalistic.276
Carolina's cession act to the Confederation by some members of the General
Assembly was especially resented. "When the members from the western
country were supplicating to be continued a part of your State, were not
these your epithets: 'The inhabitants of the western country are the off-
scourings of the earth, fugitives from justice and we will be rid of them at
any rate' " — Address of the Franklin Assembly, March 22, 1785 to Governor
Martin of Tennessee, S. C. Williams, The Lost State of Franklin, 28.
275 See ante lviii-lxiii.
-76 Mr. Nevins has expressed the same opinion in his American States.
1775-1789. Compare remarks in A. C. Flick, History of the State of Neic
York, 5: 165 on settlement of central and western New York following 1790.
At the time Morgan was seeking colonists for New Madrid, Governor
St. Clair wrote of landless Kentuckians: "There is no doubt many of these
will readily join him, for they have no country, and indeed that attachment
to the natale solum that has been so powerful and active a principle in other
countries is very little felt in America" — letter of Dec. 13, 1788, to John Jay.
W. H. Smith, St. Clair Papers. 2 : 104. In much the same way he later wrote
in 1799, of the people of the Northwest Territory: "They are too far re-
moved from the seat of government to be much impressed with the power
of the United States. Their connection with any of them is very slender —
many of them having left nothing but creditors behind them, whom they
would very willingly forget entirely. Fixed political principles they have
none, and though at present they seem attached to the General Government.
it is in fact but a passing sentiment, easily changed or even removed, and
certainly not strong enough to be counted upon as a principle of action;
and there are a good many who hold sentiments in direct opposition to its
principles, and who, though quiet at present, would then take the lead" —
W. H. Smith, St. Clair Papers. 2: 482; italics added. This is obviously in
the main philosophizing, but the italicized passages are what he actually
observed, and they are important.
On the true sentiment in Kentucky regarding both Wilkinson and Con-
nolly see Morgan's reports — Savelle, George Morgan. 210, 225. The two
cccxlviii
INTRODUCTION
Everything seemingly supports the opinion of William Henry
Smith that the squatters above referred to as evicted from the Ohio
bottoms "were equal to self-government, and, if undisturbed, would
soon have laid the foundations of a state on the Ohio."277 As a mat-
ter of fact, since the Ordinance of 1787 provided no law to be im-
mediately effective in the Territory it created (but left it to the gover-
nor and judges to establish it later), it was necessary for the first
settlers at Marietta to establish their own law just as frontiersmen
did everywhere else;218 and more than fifteen weeks passed before the
first law, of the scanty legal product of 1788, was passed by those
officials.279 Even without the encouragement given by Jefferson's
plan of 1784 states would naturally and readily have arisen every-
where on the border. His plan merely regularized a natural pro-
opening toasts drunk at a Louisville Fourth of July banquet in 1788, as re-
ported by Brissot de Warville, express rather well the dress-parade aspect
of "western sentiment. The first: "L'univers occidental — Union perpetuelle
sur les principes d'^galite, ou separation amicale." The second: "La Navi-
gation du Mississippi a tout prix, excepte celui de la liberty" — Nouveau Voy-
age dans les Mats Vnis . . . fait en 1188 (1791), 2: 422.
277 w. H. Smith, St. Clair Papers, 2 : 5. He actually made the statement
of Amberson's "Advertisement" alone; as qualified in the text, the writer
agrees. In the petition of April 11th (or 5th — Hulbert, ante n. 266, at 108),
the petitioners avowed a desire to act in strictest accord with the consent of
Congress ("the legislature"), that they had made their entry "under the
protection of Government," and never dreamed until evicted that it was
considered "prejudicial to the Common good" — ibid. 104-5. Since they
crossed from Pennsylvania, it seems fair to conclude from the petition of
April 7, 1785 by inhabitants of Washington County of that state (printed
in Hulbert, Ohio in the Time of the Confederation. 100) that it would be
fair to attribute to the petitioners of April 11 (ibid. 103) the intent to make
Jefferson's ordinance the basis of their actions; and under it they would
have been fully justified in making the allegations quoted. With this peti-
tion compare that of an earlier date from Washington County, Virginia,
discussed by F. J. Turner in the Amer. Hist. Rev. 1: 260 and by S. C.
Williams, The Lost State of Franklin, 49.
278 The first settlers arrived at Marietta on April 7, 1788. Col. John May
recorded in his diary for May 17: "This evening Judge Putnam's and
General Varnum's commissions were read; also, regulations for the govern-
ment of the people" — by whom framed? "In fact, by-laws were much wanted.
Officers were named to command the militia; guards to be mounted every
evening" — A. B. Hart, Amer. History Told by Contemporaries. 3: 104. The
directors of the Ohio Company acted as a Board of Police; as such issued
regulations of community conduct and fixed punishments for violations; also
organized the militia — "Sidelights on the Ohio Co. of Associates from the
John May Papers" (1917), Western Reserve Historical Society Tract No. .97,
104, 105, 110-12.
279 Governor St. Clair, who should have been there from the beginning,
arrived on July 9— W. H. Smith, St. Clair Papers. 1: 138. The first law of
the governor and judges was passed on July 25 — T. C. Pease, The Laws of
the Northwest Territory, 1788-1800 (I.H.C. 17), 1.
cccxlix
ILLINOIS HISTORICAL COLLECTIONS
cedure, and gave national control over such movements — which was
particularly important.280 Political compacts or associations have
been common products of the Anglo-American genius for self-govern-
ment from the time of the Mayflower onward.281 The inhabitants of
the state of Franklin acted under the inspiration of Jefferson's ordi-
nance.282 Whether written evidence does or does not exist that it was
relied upon in the initiation of projects for new governments north-
west of the Ohio,283 it surely must have been known to and relied
upon by settlers on that frontier. Jefferson merely authorized the
men of the frontier to do what they had been doing and would do
anyway. That was true even as respects the detail of allowing them
to elect, as soon as any number of them desired, the state under whose
law they wished to live pending the right to form their own consti-
280 Professor Turner's map in the Amer. Hist. Rev. 1: 75 would indicate
that a federal statute was as much needed to control irregularities in state-
making as the land ordinance of 1785 was needed to replace indiscriminate
locations of private claims.
281 s. C. Williams, The Lost State of Franklin. 1, 29 (Watauga); 31, 46,
226; F. J. Turner, "Western State-Making in the Revolutionary Era," Amer.
Hist. Rev. 1: 76-78, 266; ante n. 14 for Judge Lobingier's book. Of this no
better example can be found than was given in the Western Reserve. Con-
necticut would not govern it; the Connecticut Land Company did not; the
Northwest Territory could not — ante lxxxi-iii. Under these circumstances the
people governed themselves. "Lands were bought and sold; contracts relat-
ing to personal services were entered into; marriages were soelmnized. . . .
But there was no government whatever; no laws or records; no magistrates
or police. The people were thoroughly trained in civil obedience; they were
orderly and fully competent to govern themselves; and yet, in these three or
four years, the need of civil institutions began to be severely felt. The lack
of records, in particular, was a source of much embarrassment" — Hinsdale,
Old Northwest, 376.
These habits of order and social tradition which hold societies together
were everywhere in evidence on the frontier. It is they, and not the social
compacts of political philosophy or the pseudo compacts of the Ordinance
of 1787, to which is due the culminating tribute paid to that instrument by
Mr. Pease: "the highest and most sacred guarantee, the most practical and
stable cement of states and governments is the free and unforced covenant
and agreement of man and man" — address cited ante n. 176, at 180.
^«2 s. C. Williams, The Lost State of Franklin. 28, 29, 31, 87, 92. Mr.
Barrett showed, in his Evolution of the Ordinance of 11S1 (at 16) that the
boundaries of some of Jefferson's states cut below the Ohio and directly
suggested some organization of self-government there; Judge Williams like-
wise points out that most of the Holston-Watauga settlements were so pro-
vided for — The Lost State of Franklin. 29 n. 7, 34. He also points out that
the North Carolina constitution of 1776 suggested one or more governments
in western North Carolina (sec. xxv of the Declaration of Rights) — ibid.
at 29 and n. 7. But the reference in the text is to the invitation implicit in
the text of Jefferson's provision offering self-government under the laws of
any state which settlers might elect — ante ccliv.
283 in the petitions cited in nn. 260, 269 ante.
cccl
INTRODUCTION
tution; the Wataugans had chosen Virginia, and those of Franklin
chose North Carolina.284
It has been noted that the freedom of pioneers in the Northwest
before 1787 was theoretically — and for a time thereafter actually285 —
a freedom from law in a literal sense. It was like a return to a
state of nature, and yet these children of nature began immediately
to set up governments. These, however, were their own governments.
No doubt the first backwoodsmen wanted primarily to be let alone ;
they wanted nothing of government or taxes; felt little need for courts.
But when that changed with the influx of persons with something
saved and to be guarded, or at any rate desirous of living a secure
and settled life, what was the legal order that they demanded?
It is interesting to read, with that query in mind, the popular
petitions forwarded to Congress from the western country during the
first twenty years after passage of the Ordinance of 1787. There are
notable differences between those sent from the French of the Illinois
Country and those sent by Americans of all quarters. The former
seem to be conscious of the fact above stated ; they prayed for stronger
government, for law and order, for protection of common rights of
person and property upon which American immigrants were tramp-
ling.286 They were not accustomed to emphasize distinctions between
local and distant government, or between self-government and im-
posed government, and those distinctions did not confuse the larger
issue. The Americans, on the other hand, sought local government.
They did not say they wanted stronger government, nor with very
rare exceptions that they wanted more law and order ; the weaker
the administration, possibly the better it might have suited at least
some of them. Indirectly, they sought personal power; directly, they
sought favors. They dilated on the hardships they had endured ; they
exaggerated the obligations under which they had supposedly placed
the Union by reducing a wilderness to "cultivation" ; they represented
284 Ante at notecall 264; and S. C. Williams, The Lost State of Franklin,
227. This was merely doing what was done in various territories later on.
The constitution or statute book available, or the one from the state whence
the majority of the legislature or constitutional assembly came, has probably
invariably determined the basic law of each new state.
280 For the reason stated above in the text — that the Ordinance provided
the Territory with no law to be immediately effective.
sseAlvord, Kaskaskia Records (I.H.C. 5), 65, 89, 92-93, 233-40, 329-40,
369, 381-82, 509; Carter, Territorial Papers, 2: 60 and 3: 76; St. Clair to
Secretary of War, May 1, 1790 in W. H. Smith, St. Clair Papers. 2: 137.
cccli
ILLINOIS HISTORICAL COLLECTIONS
that they had migrated "under the protection of the State of Vir-
ginia . . . Sovereign of this territory, ' ' and asked for the confirmation
of old French claims which they had taken over; or, at any rate, in
virtually every petition they asked for land.287 No petition is to be
found for more government unless through self-government, and that
is found subject only to various qualifications.
The first is, that the prayer for even self-government is only in-
ferential. In not one petition is there a direct demand for local self-
government. In not one is there any panegyric upon self-government,
nor even a restrained encomium of it. The explanation of this is,
seemingly, that there was no need to eulogize what every American
desired or to ask for what every frontiersman enjoyed, within or with-
out the law. Local self-government was in fact enjoyed from 1788 on-
ward on the Wabash and from 1790 onward in the Illinois Country.288
It is also true that the Ordinance had set the terms on which self-
government could be had — but for what purposes does the right of
petition exist ? Is it possible that a belief that all of the Ordinance
was an unalterable compact had throttled all impulse to pray for a
change in what was merely a legislative provision, alterable at will by
Congress? What the petitions complained of was the inconvenience
and expense of distant government ;289 but this might conceivably indi-
cate no more than a choice between two evils; a preference for local
government if any must be endured.
The second qualification is that of the petitions which thus appar-
ently evidence, by implication, a desire for local government, very
few indeed fall within the suggested period of twenty years ; yet
it seems absolutely certain that within that time any given portion of
the western country would have passed far beyond the stage of
-*7 See Carter, Territorial Papers, 2, 3, and 7: index s.v. "Petitions" —
particularly 2: 69.
288 In addition, as regards prominent citizens, likely to promote peti-
tions, there was local enjoyment of patronage available under the territorial
government. In an earlier reference to political patronage disposed of by
the territorial government — Philbrick, Laws of Indiana Territory (I.H.C.
21), lvi-lx — I overlooked contracts for carrying the mail. From Carter,
Territorial Papers, index of vols. 3 and 7 (s.v. "Mail," "postal service") it
appears that some enemies of Governor Harrison held such contracts up at
least to 1808—3: 19, 70, 79; 7: 410, 554, 582.
sso ibid. 7: 99 (inhabitants of Detroit to Congress, March 20. 1803), 118
(same to same, Sept. 1, 1803), 227 (same to same, Oct. 24, 1804), 140 (in-
habitants of Illinois Country to same, Oct. 26, 1803), 545 (same to same,
April 6, 1808).
ccclii
INTRODUCTION
nomadic pioneers to that of secondary or possibly tertiary settlement.
The third qualification is that when one draws even inferentially
from the petitions a desire for self-government one must ignore the
fact that nearly every petition was grounded in politics, being in-
tended either to advance the personal ambitions of a local group or
to discredit personally the opponents of decentralization. 2n"
Finally, a fourth qualification is that the demand for closer local
control of government was in part motivated by a desire for looser
government — less taxes, a stronger position for the defense of slavery,
and security against investigations of land claims. More localized
control of government insured a more strategic position in territorial
politics.291
Any government necessarily checked the freedom of the pioneer.
It necessarily involved, in fact, a promotion of the common welfare
over individual liberty.292 But the petitions conclusively show that
even in border society far advanced beyond the stage of wilderness
outposts (the old French settlements in early years excepted) there
was no prayer for an absentee government to check frontier liberties.
With such a government there was slight contact and slighter sym-
pathy.293 Absenteeism "was close," Mr. Paxson has said, "to the
290 Compare the Illinois Country petitions cited in the last preceding
note with Philbrick, Laics of Indiana Territory (I.H.C. 21), xx-xxxix, xliv-
xlix.
291 Ibid, and lxiv.
202 Mr. Buck remarks, in defending against unduly harsh judgments the
early settlers of western Pennsylvania, that "Most of them . . . desired the
establishment of local government, with its two-fold purpose of acting for
the general welfare . . . and of limiting the liberties of individuals" —
S. J. Buck, Civilization in Western Pennsylvania (1939), at 430. It is only
as subject to the doubts set out in the text that this statement could be
taken as true of the Northwest Territory.
293. "People from various parts are flocking in, and principally establish
themselves below the great Miami . . . some of them expect, I am told to
obtain a pre-emption farm settlement, and the greater part are induced by
its remoteness from the magistrates of Knox County; of wh. it is a part; —
to be as free as the Natives" — that is. the Indians: Sargent to Secretary
of State, Jan. 20, 1797, Carter, Territorial Papers, 2: 587. Mr. Buck has
written of western Pennsylvania that to assertions of legal control by dis-
tant government the pioneers sometimes opposed united force — Civilization
in Western Pennsylvania. 451. This would seem very natural there, and
very extraordinary if in the Illinois Country. No such instance in Illinois
is known to me. Nor have I noted in Illinois records definite information
regarding popular judgments between prior "tomahawk rights" and later
"settlement rights" (ibid. 431); probably because the land commissioners
disposed of such disputes — Philbrick, Laivs of Indiana Territory (I.H.C. 21),
lxxxiv n., citing pages in American State Papers. Public Lands, where the
cccliii
ILLINOIS HISTORICAL COLLECTIONS
Revolution. . . . The American grievance was less that government
was bad, than that it was remote and beyond control."294 It was
remoteness, particularly of courts, of which the inhabitants of the
Illinois Country constantly complained in their petitions; and the
same was true, with less need and perhaps less emphasis, of petitions
from other frontiers.200 The petitions were in the tradition of the
Revolution.
Not so the Ordinance of 1787. That instrument was perverted,
seemingly, by a spirit of obstinate shortsightedness developed in
dealing politically with the backlands of the individual states. All
of these had had to deal with that problem since early colonial
times, and none seems to have dealt with it generousty or suc-
cessfully. Border grievances were everywhere substantially the same ;
some amounted to exploitation by the dominant older section of the
state ; some represented mere neglect ; all reflected social prejudice,
and all denied democracy. As Max Farrand said, "At the very time
our fathers were complaining of the gross injustice of their treatment
and the invasion of their rights at the hands of Great Britain, they
themselves were committing offences of the same sort and were dis-
regarding the same rights in the treatment of their fellow country -
men."296 All the history of border discontents and "compact" gov-
ernments was well known in Congress. Out of it arose in the large
states the specter of separatism which has left its mark in the Con-
commissioners dealt with improvement claims. Nor have I found in Illi-
nois evidence of the operations of "Fair Play Men" who gave or refused per-
mission to occupy land vacated by earlier squatters (Buck, op. cit. 430-31).
Certainly, however, there was co-operation among pre-emptioners in bidding,
and evidence on the other matters very probably exists in sources not (or
imperfectly) examined; however I should think armed resistance to govern-
ment there most unlikely.
284 American Frontier, 97; compare C. H. Van Tyne, Causes of the War
of Independence (1922), 18, 30, 313.
295 Philbrick, Laics of Indiana Territory (I.H.C. 21), xi, xxiv, xliii-xliv,
li-lii, liv; in the remonstrance of inhabitants of Lancaster, York, and other
inland (but not remote) counties of Pennsylvania the complaint (1764)
was rather of prejudice if tried in Philadelphia — Minutes of Provincial
Council, 9: 138; F. H. Hart, The Valley of Virginia in the Amer. Revolution.
1763-1789, 62-65; C. H. Ambler, Sectionalism in Virginia from 1776 to
1861 (1910), introduction; A. C. Flick, History of the State of New York.
4: 175-78; S. C. Williams, The Lost State of Franklin, 226, 348, 115; A. W.
Putnam, History of Middle Tennessee (1859), 91-102; E. Stanwood, on
grievances of Maine (1786), Mass. Hist. Soc. Proceedings. 1907-190S: 128-34.
2!)« "The "West and the Principles of the Constitution," Yale Rev. 17
(old series, 1908-1909) : 55.
cccliv
INTRODUCTION
stitution of the United States2"7 and in the statutory history of trea-
son.298 Bnt all of it was ignored in drafting the Ordinance of 1787.
The objective of its draftsmen can be fairly stated to have been
the creation of a government calculated to teach citizens order, so-
briety, and "the true principles of government." Reasons have been
given for the opinion that the Ordinance 's system did not teach them
order and sobriety; nor did any later statutes passed for other terri-
tories. Time, and gradual changes in the social standards of border
society slowly brought those qualities into territorial life.
As for seZ/-government, surely, no teaching of that was ever
needed. Excepting only the few states whose original inhabitants were
wholly or largely foreigners there has been none that even theoreti-
cally could have needed, prior to admission to statehood, any tutelage
in self-government. Even as respects those few states, who would
say that tutelage was more needed in the cases of Louisiana, Florida,
Arizona, and New Mexico, which received it, than in the cases of
Texas and California which did not? The western inland frontier
differed very little, as respects the origins and general characteristics
of its population, from the earlier seaboard frontier that had become
the original thirteen states. The inhabitants of the latter had never
doubted their own capacity for self-government. Of course they
reasonably conceded it to Vermont — which had, also reasonably, pro-
claimed it against all the world. They conceded it likewise to the
settlers of Kentucky in not subjecting them to a territorial status,
although those settlers had a vastly more unruly background than
that of the early settlers of the Northwest Territory and their fitness
(from a conservative's viewpoint) to "act for themselves" should
have appeared far more open to suspicion. In truth, sectional politics
entered into these early cases as it did into all later cases, to exclude
consistency : the balance of free against slave-holding states, beginning
with Vermont and Kentucky ; the struggle, in choosing a population
requirement for admission to the Union, for a state in the Northwest
to favor "eastern" or "southern" political interests. It has always
been assumed by eulogists of the Ordinance that its purpose in delay-
ing conferment of state government was to teach self-government.
The record contradicts the claim, and also shows that the tradition of
297 Art. IV, sec.
298 Ante n. 265.
ccclv
ILLINOIS HISTORICAL COLLECTIONS
actual tutelary training' is a mere myth. Apologies for it as in the
exculpatory phrases of Monroe's first committee report,299 were never
other than pure sophistry. Perhaps the members of the committee
recognized that, for when Dr. Johnson was made chairman of the
reconstituted committee all those phrases, and all the context explana-
tory of the purpose of the governmental plan in which they were em-
bodied, were omitted,300 and the facts of the plan were left to speak
for themselves. It still rested, however, on the same fallacious as-
sumptions and, measured against the dominant political faith of the
day, still spoke with the same sophistry as before.
But, in fact, the draftsmen of the Ordinance did not regard
self-government as covering, or perhaps as included in, "the true prin-
ciples of government." It has been remarked that the Ordinance
assumed that even the seemingly ideal emigrants of the Ohio Company
were incapable of self-government. In truth, the implication of its
governmental plan was not precisely that ; it was, rather, that even
those settlers, could not be trusted to maintain proper self-govern-
ment— that is, one accordant with the desires of Dane and like-minded
conservatives. The impropriety they feared was an excess of self-
government. What Dane and King and Kent wanted was not merely
a frontier life as ordered under the laws of Massachusetts or New
York; for those laws permitted in the border societies of their states
the social crudities, the license of squatters, the partial security of
emigrants liable to imprisonment for debt, against which they re-
volted. What they wanted was a frontier society accordant with
their personal and class conceptions of self-control and propriety.
Quite logically, for them, they regarded in the same way the frontiers
of the states and of the Union. To a fellow conservative Dane wrote
that "our frontier inhabitants from New Hampshire to Georgia . . .
will give us much trouble in a few years if we do not treat and govern
them with much prudence and good policy."301 This meant that the
299 Quoted ante at notecall 114.
300 Compare Jour. Cont. Cong. 30: 403, 405 with ibid. 31: 669, 672.
30i To Thomas Dwight, March 2, 1787— Burnett, Letters. 8: 556. It
meant something quite different when Washington wrote in 1785: "unless tee
can connect the new State . . . with those on the Atlantic by interest, (the
only binding cement . . .), they will be quite a distinct people; and ultimately
may be very troublesome neighbours to us. In themselves considered, merely
as a hardy race, this may happen; how much more so, if linked with either
of those powers" — Spain or Britain — "in politics and commerce" — Writings
ccclvi
INTRODUCTION
laws should give the writer's class political and economic security
against western liberalism. It is easj^ to understand why Dane ac-
cepted even the Ordinance of 1787 as merely the best government it
was possible to secure. The Ordinance was a successful attempt to
gain for reactionaries the control over federal territories which
liberals had wrested from them in their own states.
So they created a true colonial system, and it is worth while noting
that its framers were influenced in so doing by exactly the same eco-
nomic and political considerations as those that had determined British
colonial policy. There was the same fear that the distant plantations
would grow away from the mother country. Burke had noted, for
example, how Pennsylvania was in "danger of being wholly foreign
in language, manners, and perhaps even inclinations."302 With in-
finitely less reason one could collect similar judgments, language aside,
regarding the inland and cross-mountain frontiers. Regardless, again,
of the proper interpretation of the proclamation of 1763, as marking
or not marking its beginning, it is certain that a British policy of
colonization in the West gained headway in later years, and presum-
ably everybody would concede to that policy the objectives which
Lord Hillsborough regarded as "two capital objects" of the original
proclamation — namely, that of keeping all settlement "within the
reach of the trade and commerce of England, ' ' and of keeping settle-
ments "in due subordination to, and dependence upon, the mother
country."303 Could the aspirations of Jay and King and accomplish-
ments of Jefferson's revisers be better stated? Mr. Alvord thought
that some in the British government might have had "a real fear of
western expansion," that "there may have been also the fear of de-
(Fitzpatrick ed.), 28: 291; and compare 29: 192. Different because of its quali-
fications, and because Washington was devoting all his time to open up
easy ways of commerce to the Northwest — ante n. 123.
:!l12 An account of the European Settlements in America (1765), 2: 201.
303 Franklin, Works (Bigelow ed.), 5: 4, 75. The Board of Trade re-
ported favorably to the Privy Council in 1748 on settlement of the trans-
Appalachian country — G. H. Alden, Neiv Governments West of the Alle-
yhanies before 1180 (1897), 40-41. Such talk began at least as early as the
organization in 1738 of the first Virginia county west of the Blue Ridge— ibid.
1, 2. One colonization scheme ended in frustration only because organization
as a Virginia county was more feasible; another was approved by the British
government, but final action was prevented by the Revolution. A vast
amount of data relating to western land companies and state projects is pro-
vided in T. P. Abernethy, Western Lands and the American Revolution.
which in fact carries the story down to 1779.
ccclvii
ILLINOIS HISTORICAL COLLECTIONS
populating Great Britain. ' ':;"4 The people of the colonies were forbid-
den, naturally, to pass laws repugnant to the laws of England.303 The
requirements of the Ordinance that laws for the Northwest Terri-
tory's government be at first selected from laws of the original states,
and later — when passed by a local legislature — be subject to disallow-
ance by Congress, had the similar purpose of preserving the colony's
political virtue. In short, the Ordinance rested upon the familiar
reasoning of all colonial powers.
In repudiating the political doctrines and practices of the fron-
tier, which Jefferson's ordinance accepted, the Ordinance of 1787
repudiated principles of the Revolution. No justification can be
found for this unless the dangers supposedly latent in frontier habits
and liberalism really existed. It has been submitted that they did
not, and — -which is both more important and more disputable — that
there were not reasonable grounds for believing them to exist. Rumors
and gossip were rife, but Washington thought that all danger of wes-
tern nonadherence to the Union would disappear if trade could be
established with the West.306 In Jefferson 's opinion that area would be
lost only if its interests were unfairly dealt with ;307 that is, only if
the Atlantic states persisted in their unjust border policies.
But even had there been excuse for the Ordinance in 1787 the
excuse soon ceased to exist. No one would today deny that the in-
substantial nature of the fears on which that instrument's govern-
mental plan rested was entirely clear after the War of 1812. Few
would deny that any possible earlier justification of those fears was
wholly removed by the Louisiana Purchase. It is also entirely clear
that if there had at any time existed in the western countrv anv
304 c. W. Alvord, The Mississippi Valley in British Politics (1917), 2:
161, 189.
305 "With the exception of the first charter of Virginia, of 1606, the royal
charters, in constituting the colonial governments, provided that the local
legislation should not be contrary to the laws of England, or that it should
be conformable as near as might be to the laws of England" — J. C. Hurd,
The Law of Freedom and Bondage in the United States (2 vol. 1858-1862), 1:
119. The latest review of the English field is in two articles by Professor
D. O. McGovney, "The British Origin of Judicial Review of Legislation" and
"The British Privy Council's Power to Restrain the Legislatures of Colonial
America: Power to Disallow Statutes: Power to Veto" in University of
Pennsylvania Law Review, 93: 1-49 and 95: 59-93, respectively. See also
O. M. Dickerson, American Colonial Government 1696-1765: a Study of the
British Board of Trade (1912), ch. 5.
soe Ante n. 123.
so- Ante ccxci and nn. 68, 122.
ccclviii
INTRODUCTION
disaffection toward the Union, such disaffection must have been ag-
gravated by the Ordinance's temporary denial of and permanent
restriction upon self-government ; and this aside from the exclusion of
the territories from the federal system save for the tenuous thread of
one nonvoting representative of each in Congress. Once an end was
put to the anxieties of settlers along the Mississippi over obstructions
to commerce at New Orleans, any remaining danger of a desire in the
West for statehood outside the Union, if such existed, could have
arisen only from the unrest created by the Ordinance itself. That
there never eventuated in any early territory, despite these illiberal
provisions, any overt movement or even threat of resistance to govern-
ment, is good evidence that nationalistic spirit was strong and separa-
tist sentiment nonexistent or negligible. The Ordinance's plan was
therefore inadequately considered, because the foreign dangers it was
intended to counteract proved to be insubstantial even in early years,
and because the domestic dangers which it sought to minimize proved
to be equally insubstantial even with the additional irritant of the
Ordinance's ungenerosity.
Mr. Farrand once wrote that
The western country and its people presented no easy problem to
the United States : how to hold those people when the pull was strong
to draw them from the Union ; how to govern citizens so widely sepa-
rated from the older communities; and . . . how to [gain for all the
states and] hold the land itself.308
The third of these problems was substantially solved when Virginia's
cession was made in 1784. It had been, indeed, a difficult one, for it
involved not only obstinate rivalries between the states but the prob-
lem of deciding whether all the states should commit themselves to a
great advance in federalism.309 Nevertheless it was rightly solved ;
and solved as the answer to that question had from the first been in-
stinctivety voiced by Congress. The first and second problems were
difficult only because in many political problems actual facts are less
important than imagined facts. Imagined facts — assumptions that
had scanty factual basis respecting foreign relations — equally false
assumptions, resting on mere social prejudices, respecting the char-
acter of frontier society — perverted the Ordinance of 1787.
508 The Fathers of the Constitution, 56.
?°f That is, of agreeing to enlarge it by the addition of new states.
ccclix
ILLINOIS HISTORICAL COLLECTIONS
Considering that frontier policy had been more or less of a local
problem in every colony throughout its existence, it might seem that
when they jointly assumed responsibility for its solution in federal
territory wisdom was to be anticipated.310 Their views of what policy
was best could no longer be warped by any direct economic interest
in the territory (as it was in regard to their own backlands), nor by
exclusive political advantages given by its ownership. Under such
circumstances the influence of Revolutionary liberalism would sup-
posedly have been powerful. In fact there is no evidence whatever
of its existence.
Two groups of exceptional men — in considerable part identical,
all of the same economic and social stratum, all of large political
experience- — formulated simultaneous^ the Constitution and the Ordi-
nance. To the problems of new states, and therefore necessarily in
some degree to the general problems of the West, the Federal Con-
vention gave long and strained attention. With reversed apportion-
ment of interest the same was true of the Congress. So far as an ob-
servance of the principle of equality was ineluctable in performance
of their respective tasks their work was successful. That was true
of the primary task of each body: — of the Convention's in creating
a federal system of equal states, with equality of all in relation to
the federal union, and with equal rights in all states of the citizens
of each ; — of the Congress, in giving equality to all citizens of the
Territory, and to the citizens of all states while in the Territory,
under its government, courts, and law.
But the status of a territory, as such, was something new. It had
never been a thing apart from the individual colonies before, and
now was; the treatment of the backlands in the colonies had never
been based on principles of equality. It had for years been assumed
that the territory should be outside the Confederation until organ-
ized piecemeal into states for admission thereto ; naturally, it would
seem, its status under the Constitution was left unchanged, with
3io Professor McLaughlin suggested that "From the beginning of colonial
history, the frontier policy had been for each colony a matter of difficulty,
and it was not so easy as it might now seem to cast aside traditions and at
once transfer the whole — -policy, hopes, plans, government, and lands — into
the hands of a central authority as yet untried and indeed unformed" —
A Constitutional History of the United States (1936), 122. Having imposed
upon themselves in common a problem known to each to be one of great
difficulty, their solution of it as a federal problem is interesting.
ccclx
INTRODUCTION
the provision that Congress "may" admit new states. The power
was immense, despotic, and could be dangerous, as the Hartford Con-
vention recognized. Under the balancing of slave- and free-state
admissions it dominated our national politics for decades. The powers
of the old Congress, under the compact between the Confederation
and Virginia, to set up territorial government had also been almost
unqualified.311 Under the Constitution the problems of government
were evaded by empowering Congress to "make all needful rules and
regulations respecting it " ; those loose phrases being deliberately
chosen by Gouverneur Morris to permit of permanent dependencies
governed imperially. And the old Congress furnished, as a sample
of proper legislation, the Ordinance, which the new Congress re-
enacted without substantive change.
In short no originality, no trace of the influence of Revolutionary
idealism, appears in the treatment of the territorial problem. Colonial-
mindedness prevailed. The field in which political maladministration
had been most marked in the colonial period — unequal representa-
tion in the legislature — no longer existed; each territory, following
the Ordinance model, would have only one nonvoting representative
in Congress, regardless of its age or population. Lesser and varying
contradictions of democracy were thus avoided by including them in
one initial contradiction that was grosser. The Ordinance provided
that the territorial inhabitants should be "subject to pay a part of
the federal debts contracted or to be contracted, and a proportional
part of the expenses of Government, to be. apportioned on them by
Congress, according to the same common rule and measure by which
apportionments thereof shall be made on the other States." But
those are only the words of Congress; nothing in the Constitution as
thus far constructed by the Supreme Court has required equality.
And even had "equality" of taxation been guaranteed — what of our
Revolutionary slogan?
an With reference to the power to admit new states, Nathan Dane, in
his letter of 1830 to Webster, commenting upon Hayne's criticisms of the
Hartford Convention, said: "had Mr. Hayne thought a little more of Con-
gress's exercise of unlimited power to make new States at pleasure on any
purchased territory, he never would, I believe, have reproached the Conven-
tion for proposing to restrain such unlimited, tremendous power"- — Mass.
Hist. Soc. Proceedings. 1867-1869: 480.
On the power to govern under the amended Articles, ante xci-ii; on both
powers under the Constitution, cxxv-xxx.
ccclxi
ILLINOIS HISTORICAL COLLECTIONS
One must sometimes wonder how many of those who have written
about the Ordinance had actually read it. Some have even queried
whether its plan of government could possibly have been bettered,
and many others, in their extravagant praise of its excellencies, have
seemingly assumed that it could not.
It would have been very easy to have given the territories a
qualified place in the federal system — or at least a closer relation
to it, particularly with full representation. It would have been
very easy to have made the action of Congress in the territories sub-
ject, as respects rights of persons and property therein, to whatever
restraints should be imposed upon its action within the area of the
states united under the Constitution. When such immense improve-
ments can so easily be mentioned, it is unnecessary to recount
numerous lesser ones.
To be sure, the grievances of border settlers in the individual
states were not in general reproduced in the federal territories. Be-
cause of the differences in form of government some could not be.
And because the disorderly qualities assumed to be permanent in terri-
torial society were soon recognized as only transiently characteristic
of its first stages of settlement, and the inhabitants proved to be
dependably nationalistic, the timorous and prejudiced attitude of the
Ordinance's framers did not long continue dominant in Congress. To
be sure, also, Congress observed its legislative guaranties of personal
liberty. To those who think that there is no real choice between gov-
ernments— "whate'er is best administered, is best"— these facts mean
that the Ordinance's was as good a government as any.312 But these
facts were so despite the form of government. They were so because
of the steadiness of Anglo-American traditions of government and
personal freedom.
Moreover, government did not proceed smoothly under the Ordi-
312 Milo M. Quaife has written for pupils in the public schools: "one
would hesitate to affirm that any other form of government that could have
been devised would have operated better .... it would be difficult to prove
that anyone today, endowed with all the knowledge of the actual course of
development which the century and a half since 1787 has witnessed, would
be able to draft a better one" — 111. Hist. Soc. Journal, 30: 422-23. It is un-
fair to exclude all who would try by requiring such impossible qualifica-
tions; and besides, since no other system can be tried, could Dr. Quaife
be persuaded that anything would have worked better? Professor Pease, on
another "patriotic" occasion, took much the same position — T. C. Pease,
"The Ordinance of 17S7," Miss. Vol. Hist. Rev. 25: 172.
ccclxii
INTRODUCTION
nance. Official bickerings (particularly during the stage of nonrep-
resentative government), and loud complaints from territorial in-
habitants against some of it's injustices, disturbed territorial affairs
throughout the existence of the system. This constant unrest was a
reality, not to be overlooked because of an assurance that ultimately —
when a balance of free- against slave-state admissions or (later) of
power between political parties should permit — escape from it could
be had in statehood.313 And this is wholly apart from the role
played by party politics in the actual administration of the system,
the abuses of which — as already pointed out314 — were inherent in the
svstem's centralization.
The authorship of the Ordinance was the subject half a century
ago of a controversy which the merits of the enactment scarcely justi-
fied.315 It arose from the fame of the Ordinance's "compact" articles,
and was supposedly justified by their importance, although their mere
legislative character had been made clear by the Supreme Court long
before the controversy started. Any review of this controversy re-
313 Dr. Quaife (like some others) seems to feel that this anodyne should
have quieted the discontented. Indeed, he has gone so far as to assert that
there were grievances and still were none, and sustains the latter position
with a novel reason. "The territorial period for each" of the states of the
Old Northwest, he says, "was marked by political discord, and numerous
complaints were made against the rulers the President placed over the terri-
tories. Many of these complaints were in fact well founded." But never-
theless, since it was agreed that the territories were ultimately to be organ-
ized- into equal states of the federal Union, "This program for the govern-
ment of America's own colonial domain eliminated at a single stroke the
grievance which had driven the older colonies into rebellion against their
king and country. For their complaint, at bottom, had been that they were
regarded as politically inferior to their countrymen at home, subject to be
governed forever by the latter, without regard to their own views or de-
sires"— 111. Hist. Soc. Journal, 30: 422, 419-20; italics added. Now, possibly
the colonies would have forgotten all grievances elaborated in the Declara-
tion of the Causes and Necessity of Taking up Arms (July 6, 1775 — Jour.
Gont. Cong. 2: 140-57) had they been promised ultimate incorporation into
the Empire as equals of Great Britain; they said nothing of that, but it is
an idea to contemplate. At any rate Dr. Quaife tells the school children that
that grievance being absent in the case of our colonies, they had — seemingly
— really no grievances.
si* Ante at notecall 197.
sis It began with the two articles of Dr. Poole referred to ante n. 3.
There are discussions of the question in Dunn, Indiana, 204-10; C. R. King,
Rufus King, ch. 15; Hinsdale, Old Northwest, 273-78; the last discussion by
Dr. Poole is in Amer. Hist. Assoc. Papers, 3: 287-94; Dane's discussions
are cited post n. 322.
ccclxiii
ILLINOIS HISTORICAL COLLECTIONS
veals the uncritical character of considerable historical writing — not
wholly confined to that of two generations ago.
With the slow acceptance of truth regarding the nature of the
compact articles there has also come a realization that there was
little possibility of individual authorship, in the usual .sense of that
word, in the case of a legislative enactment. It was produced by a
committee. Though the original appointment of this was by motion
of Nathan Dane, he was not made a member of it until four months
later, was never its chairman, and did not report it in final form to
Congress. It was, as Dane himself stated, reported by Edward Car-
rington, who was chairman of the committee — though only, as Dane
also said, pro forma.316 It was entirely in Dane's writing/117 and un-
questionably presented the views of a majority, headed by Dane, to
some of which views Carrington was unsympathetic. 31S Ten men
participated in the committee's work; we know minor contributions
made by some of them, and other members were of such ability and
force as to preclude an assumption that they contributed nothing.31"
In the second place, the completion of the instrument was plainly
due to a conjunction of the interests of several groups of influential
citizens, and although the compromises required to unite these inter-
ests affected more particularly the ordinance for sale of the land
they also somewhat affected the Ordinance in which we are here inter-
ested. The sources fully support Richard Henry Lee's description of
the Ordinance "as a measure preparatory to the sale of lands."320
3i6 "Col. Carrington, of Virginia, as chairman, of the committee pro
forma, reported the ordinance, but formed no part of it." Dane, Abridgment.
9 (app.): 75. See post n. 377.
"^ Jour. Cont. Cong. 32: 314 n. 1. In 1820 this manuscript draft could
not be found, but Dane's manuscript draft of the slavery article was then
attached to the draft printed after the first reading of July 11, exactly as
it is attached today — Dane's letter to Webster, March 26, 1830, in Mass. Hist.
Soc. Proceedings. 1867-1869: at 478. Compare post n. 338.
3i8 See Dane's letter quoted ante n. 247.
;uo The members appointed on March 27, 1786 were James Monroe, Wil-
liam Samuel Johnson, Rufus King, John Kean, Charles Pinckney — Jour.
Cont. Cong. 30: 139. They reported on May 10 and again on July 13 — ibid.
251, 255, 402-6. Johnson, Pinckney, Melancton Smith, Nathan Dane, and
William Henry reported on Sept. 19 — ibid. 31: 669-73; Dane had been ap-
pointed on July 19 — ibid. 30: 418 n. 1 — but retired from the committee ou
Aug. 7 — ibid. 31: 502 n. 1. On July 9, 1787 recommitment was made to
Edward Carrington, Dane, Richard Henry Lee, Kean, and Smith — ibid.
32: 310. See post n. 332.
»2o He so described it in a letter of July 15, 1787 to Washington with
which a copy of the enactment was enclosed. He continued: "Our next
ccelxiv
INTRODUCTION
There were members of the Ohio Company of Associates and the Scioto
Company who were interested in western colonization merely for
financial gain and others interested in it as an aid to veterans of the
Revolutionary War. There were members of Congress whose support
of the Ohio Compairy's proposed purchase would have been stronger
because of the probability that this would insure the exclusion of
slavery in the plan for local government. Others looked with particu-
lar interest upon the plans of the Company because the New England
background and desirable character of its original members promised
a frontier society of sobriety and stability that would be conducive
to the safety of the western states and border of the Confederation.
Still others welcomed a large and compact area of settlement, particu-
larly by citizens of industrious and dependable habits, because it held
out the hope of future income for the payment of the federal war debt.
And lastly, the ambition of Arthur St. Clair, president of Congress,
to be governor of the new territory, and his personal popularity, seem
to have entered into the joint effect of these various influences.321
It is manifest that all this would have restricted free action by
any one member of the committee ; and, since Dane wrote the report,
these circumstances might indicate that his contribution could have
been no more than the secretarial functions of recording resolutions,
sensing compromises, and choosing phrases that satisfactorily covered
them. Some have therefore referred to him as the committee's
"scribe." But though the differences in interest just mentioned
would have affected the relative satisfaction with which men voted
for different provisions of the Ordinance, the actual evidence reveals
object, is to consider of a proposition made for the purchase of 5 or 6 mil-
lions of Acres, in order to lessen the domestic debt" — Burnett, Letters, 8:
620. Dr. Poole wrote: "it was drafted as a part of the scheme devised by
the Ohio Company . . . for buying and settling . . . land in Ohio" — Amer.
Hist. Assoc. Papers, 3: 287. Its preparation, that is the revision of Jeffer-
son's ordinance from which it resulted, was begun in 1785, and was not "a
part of the scheme" of the Ohio Company (which was organized in March
1786 but was essentially an offspring of the petitions from officers of the
army in 1782-1783); however, it did accord with the Company's plans, as
pointed out below, ccclxix.
32i it is not meant that these were distinct groups which bargained as
entities, but that the special interests of all were involved. Herbert Adams
was perhaps first to emphasize this multiplicity of converging interests
(actually less important, it would seem, than has been imagined) — book
review cited ante n. 1. President Hinsdale later did the same — Old North-
west (1888), 269, and in W. P. Cutler, Manasseh Cutler (1888), it was
recognized as the basis on which Dr. Cutler relied for a realization of his
plans— 1: 121.
ccclxv
ILLINOIS HISTORICAL COLLECTIONS
only one of these interests (that of the Scioto speculators) as involved
in negotiations that directly affected its contents. If, then, Dane was
dominant in a committee majority thoroughly agreed upon the plan
of temporary government (which alone had been drafted in any form
up to July 9 — he concededly adding everything else), and was given
a free hand in redrafting that, he might very well have been the
author of the enactment in the sense of freely selecting, phrasing, and
combining its content. And that appears to have been precisely the
situation.
His claims throughout his life to authorship of the Ordinance in
any sense322 were confined to authorship in the sense of responsible
*22 First, in a letter of July 16, 1787 to Rufus King— see C. R. King.
Rufus King, 1: 289 — also printed in W. P. Cutler, Manasseh Cutler, 2: 372;
and in Burnett, Letters, 8: 621; again in his Abridgment, 7: 442-50 and 9
(app. 1830): 74-76; in his letter of March 26, 1830 to Mr. Webster— Mass.
Hist. Soc. Proceedings, 1867-1869: at 475; and finally in a letter of May 12,
1831 sent to J. H. Farnham, for the Indiana Historical Society, which was
first published in the New York Tribune of June 18, 1875 and later (from
the original) in the Ind. Hist. Soc. Publications, 1: 69-71.
In the above letter to Webster he wrote: "I have never claimed originality
except in regard to the clause against impairing contracts, and perhaps
the Indian article" — Mass. Hist. Soc. Proceedings, 1867-1869: at 479; meaning
the portion of the 3d compact article which refers to the Indians. The fol-
lowing quotation explains the substance of his claims. "The sixth article
of compact, the slave article, is imperfectly understood — Its history is — in
1784 a committee, consisting of Mr. Jefferson, Mr. Chase, and Mr. Howell,
reported it, as a part of the plan of 1784. This Congress struck out. . . .
It was imperfect, First, as it admitted slavery until 1800. Second, it ad-
mitted slavery in very considerable parts of the territory forever. . . .
[See post n. 346.]
"The amended slave article, as it is in the ordinance of '87 was added
on the author's motion as the journals show — [and] was not reported
[from the committee. See post n. 338]. . . .
"On the whole, if there be any praise or any blame in this ordinance;
especially in the titles to property and in the permanent parts;" — that is,
the compact articles — "so the most important, it belongs to Massachusetts;
as one of her members formed it and furnished the matter with the excep-
tions, following. First, He was assisted in the committee of '86 in the
temporary organization; almost solely by Mr. C. Pinckney, who did so little
he felt himself at liberty to condemn this ordinance in that debate [namely
of 1820, on Missouri; see post n. 360]. Secondly, the author took from Mr.
Jefferson's resolve of '84 in substance the . . . six provisions in the fourth
article of compact. . . . Thirdly, he took the words of the slave article
from Mr. King's motion made in 1785 [see ante ccxxxi-iv; post n. 346], and
extended its operation, as to time, and extent of territory, as is above men-
tioned— as to matter his invention furnished the provisions respecting im-
posing [impairing] contracts and the Indian security, and some other
smaller matters, the residue, no doubt, he selected from existing laws, &c."
— Dane, Abridgment, 9 (app. 1830): 75-76.
Dr. Poole depreciated Dane's claims, as due to old age, failing memory,
delay until his contemporaries of 1787 were all dead — Amer. Hist. Assoc.
ccclxvi
INTRODUCTION
draftsmanship. As he said, he "drew" it; and as a Massachusetts
lawyer he employed in various cases the language of her laws or con-
stitution. He stated his claims modestly and discriminatingly. He
was certainly not merely, as Dr. Poole and George Bancroft deprecia-
tively called him, "the scribe" of the committee.323 As an able lawyer,
with large legislative experience, his contributions in committee dis-
cussion would presumably have been at least equal to those of any
of his colleagues. His fitness for such work (for several years he had
been engaged in revising the statutes of Massachusetts) should have
been greater than that of any of them, unless possibly Dr. Johnson.324
Papers, 3: 288, 293. In fact his claims throughout life were modest, fell
within his demonstrably original contributions, and his writings up to 1831
(aet. 79) reveal no mental weakness.
323 Bancroft, in the last revision (1883-1885) of his History, 6 (1896
repr.): 287, 290; by Dr. Poole in 1888, presumably following Bancroft, in
his presidential address before the American Historical Association — see its
Papers, 3: 287.
324 He mentioned his early work in statutory revision in his letter to
Webster: "one who, in '87, had been engaged several years in revising her
laws .... some statutes revised on subjects of importance, from 1782 to 1801" —
Mass Hist. Soc. Proceedings. 1867-1869: 479; see Judge Story in No. Amer.
Rev. 23 (1826) : 40, 41. Nota bene. Dane was not free to alter what had been
shaped by the committee.
In addition to talents and experience, he had already begun his com-
parative study of the law of the different states, the results of which were
ultimately embodied in his Abridgment — Justice Story, review of Dane's
Abridgment {ante n. 35) in No. Amer. Rev. 23 (1826): 14. He served in the
lower house of the Massachusetts legislature, 1782-1785, before going to the
Continental Congress, 1785-1787. He later served in the Massachusetts
Senate, 1790, 1793-1798; in 1795 was commissioned to revise the laws of the
Commonwealth, and in 1812 was one of the commissioners to revise and
publish its laws of the colonial and provincial periods. See DAB, s.v. "Dane,
Nathan." His biographer in that work correctly characterizes his Abridg-
ment as "the first comprehensive compendium of law" published in this
country; and it is believed that he is justified in describing it as "displaying
not only his great legal attainments but a meticulous attention to detail and
a methodical labor which was characteristic of everything which he under-
took." Dane gave a building to the Harvard Law School and endowed a
professorship in it — see Charles Warren, History of the Harvard Lata School,
1 (1908): 416 seq. and 468 seq. The professorship was established on the
condition that his friend Justice Story should be its first occupant, and the
latter, in dedicating to Dane his Bailments, characterized him as "distin-
guished alike . . . for talents, learnings, and fidelity in his profession, and
for public labors." See also Charles Warren, Hist, of the Harvard Law
School, 1: 413-16; Story's review of the Abridgment in No. Amer. Rev. 23
(1826) : 21-33, 39-41. Story, in the dedication cited, praised Dane's "sim-
plicity and dignity." President Quincy (Warren, 1: 414) characterized him
as "calm, even, and serene." His biographer (DAB) states that "his out-
standing characteristics were industry, directness and simplicity. . . . He
possessed a singularly well-balanced judgment, a great forethought, and was
totally devoid of temperament." Dr. G. B. Loring undoubtedly expressed
ecclxvii
ILLINOIS HISTORICAL COLLECTIONS
Let us turn to the last days of the Ordinance 's legislative history.
The Ohio Company had prepared a plan to purchase a million and a
half acres beyond the Ohio. Dr. Manasseh Cutler was made its agent
to conclude a contract with Congress, and in his diary he refers to
consultations with Rufus Putnam and Samuel Holden Parsons as
having "settled the principles on which I am to contract . . . for
lands," "all our matters with respect to our business with Con-
gress.'^2" The reworking of Jefferson's ordinance had been more
than fifteen months in progress when Dr. Cutler reached New York
on July 5, 1787. As respects the system of governmental adminis-
tration established by the Ordinance of 1787 (as distinguished from
the basic principles of government enunciated in the compact articles),
the draft already before Congress was in substance what the Ordi-
nance in final form provided. Otherwise the two were totally dif-
ferent. Up to July 5 the draft contained none of the six "compact"
articles — and little of the other matter, not dealing strictly with gov-
ernmental provisions, which it ultimately contained. In eight days
the enactment had been completed, vastty changed, and unanimously
passed. Unquestionably this rapid progress reflected the enormous
influence of the Ohio Company's project, involving the convergence
of the several influences above indicated. But a memorial of the Com-
pany had been two months before Congress. The progress suddenly
made after Dr. Cutler replaced General Parsons as the Company's
agent was presumably due to the former's genius for persuasion and
compromise.326
But what do the above-recited facts indicate regarding any specif-
ic influence exerted by Dr. Cutler upon either the form or the content
Massachusetts traditions in describing him (Amer. Hist. Assoc. Papers, 3:
307) as "a calm, conservative, dispassionate, able, and accomplished lawyer."
Particularly interesting to one who observes his committee work in Congress
is another characterization by Judge John Lowell, who preceded him in
Congress: "a man of great firmness, approaching to obstinacy, singular,
impracticable. . . . Honestly, however, inclined" — Warren, op. cit. 413.
325 w. P. Cutler, Manasseh Cutler, 1: 204, 205.
326 A petition by Parsons to Congress, presented on May 9, had reawak-
ened interest in plans for government of the western country. See post
n. 331. Dr. Cutler expressed (May 30) absolute disagreement with Parsons
as regarded location of the purchase — ibid. 1: 296-97. This was the cause of
his being superseded by Cutler as the Ohio Company's spokesman before
Congress — see Hulbert, Records of the Original Proceedings of the Ohio
Company, 1: liii-lv. The essential documents on the land purchase are in
Carter, Territorial Papers. 2: 29, 52-56, 61-64, 80. Parsons' original detailed
proposals are in Hulbert, op. cit. li-lii.
ccclxviii
INTRODUCTION
of the Ordinance? The "principles" on which it was agreed with
General Putnam, he should "contract . . . for lands," and the "mat-
ters" involved in his "business with Congress" on which he and
General Parsons agreed, were presumably identical, and likewise pre-
sumably business matters ; such as the location and survey of land,
and the price and manner of payment.327 Could they have included
anything other than such matters of ordinary business? — perhaps
stipulations respecting a governmental plan for the Territory, or even
such matters as slavery?
In view of the antecedents of the Ohio Company it may be sur-
mised that if an unsatisfactory governmental plan had not been in
prospect difficulties might have arisen in the Company's negotiations
with Congress. Dr. Poole said that "The purchase would not have
been made without the Ordinance, and the Ordinance could not have
have been enacted except as an essential condition of the purchase."
If there is doubt about this neat summary it concerns the second
rather than the first proposition. Mr. Hinsdale took it to mean that
the New Englanders would not have bought the land unless assured
of "a satisfactory government."3-'* Of that there can be little doubt.
But a conservative plan for stable government had long been in
prospect, and though we may assume that Dr. Cutler took great satis-
faction in it, there is no evidence that it gave him any anxiety.
Is it reasonable, then, to suppose that the "principles" on which
he was to act in contracting for land included stipulations respecting
slavery ? — or respecting other matters Jailing under English tradi-
tions of freedom and liberal government that were not in the draft of
the Ordinance when Dr. Cutler arrived in New York? It has been
assumed that they did, and on the basis of this assumption extrava-
gant claims have been made for him as respects authorship of the
Ordinance,329 although he never made any, himself, beyond a refer-
S2T I find that Frederick D. Stone long ago took the same view as the
writer on this (and on various other points) — "The Ordinance of 1787"
(1889), Pennsylvania Magazine of History and Biography. 13: 309, 323.
ass Hinsdale, Old Northwest, 276.
329 By Dr. Poole, who wrote: "In view of its sagacity and foresight, its
adaptation for the purpose it was to accomplish," — which characterizations
the writer considers only empty rhetoric — "and the rapidity With which it
was carried through Congress, the most reasonable explanation ... of the
origin of the Ordinance is, that it was brought ... by Dr. Cutler, with its
princip'es and main features developed; that it was laid before the land
committee ... on July 9th, as a sine qua non in the proposed land pur-
ccclxix
ILLINOIS HISTORICAL COLLECTIONS
ence to "several amendments" suggested by him and adopted.330
Dr. Cutler's business, as the records show, was not at all with
the committee engaged with the preparation of the governmental
Ordinance. When, on July 6, he "presented" his petition it was
obviously presented to the land committee, appointed two months
earlier to report upon the proposal made by the Ohio Company
through General Parsons, then their agent.331 From that day onward
intensive consideration of the governmental plan and of the Company's
projected purchase had necessarily proceeded simultaneously, and
on July 9, the day that Cutler began his actual negotiations, the
interdependence of the proposed purchase of territory and the neces-
sity of organized government thereover was recognized in the reor-
ganization of the committee in charge of the governmental plan, its
new membership being made in part identical with that of the land
committee.332 Moreover, as the latter committee seemingly did not
chase; and that the only work of the Ordinance Committee was to put it in
a form suitable for enactment. The original draft may have been made . . .
by Rufus Putnam, Manasseh Cutler, or Samuel Holden Parsons; but, more
likely, was their joint production" — Amer. Hist. Assoc. Papers, 3: 293.
The formulation of the governmental p'an has already been traced in the
proceedings of Congress; the derivation of almost all the other matter in
the Ordinance can be suggested with considerable confidence; were that not
possible, there is no reason whatever to doubt the accuracy of Dane's own
c'aims. Hardly any of Dr. Poole's surmises had any evidential or even
logical basis. None of the three men he named seems ever to have made any
claim to have shared in the drafting of the Ordinance, beyond the vague and
modest statement of Dr. Cutler quoted in the text.
330 w. P. Cutler, Manasseh Cutler, 1: 242, 293. The only one identified
related to taxation before representation; so he did influence (though he con-
ceded the desirable modification of his proposal) that very important portion
of territorial government — see post at notecall 358.
331 His memorial, of May 8, was presented on May 9 to Congress, and
referred to a committee consisting of Edward Carrington, Rufus King,
Nathan Dane, James Madison, and Egbert Benson — Jour. Cont. Cong. 32:
276. The Journal shows no petition from Cutler to Congress; he merely
replaced Parsons as agent with new terms and conditions of contract — W.
P. Cutler, Manasseh Cutler, 1: 230. This is very clear from the documents
cited ante n. 326. Later, unwilling to assume certain responsibilities alone,
he joined Winthrop Sargent with him in closing the final agreement — ibid.
299 and Jour. Cont. Cong. 33: 427-29.
332 There was no quorum in Congress from May 14 to July 4. The com-
mittee to which the Parsons memorial was referred was the land committee,
and it reported on July 10 — ibid. 32: 311-13. On the very day that the
Parsons memorial was presented, a report by a committee (William Samuel
Johnson, Charles Pinckney, Melancton Smith, Nathan Dane, and William
Henry — ibid. 242) charged with the drafting of a governmental plan had
been debated and ordered to a third reading on the next day, May 10 — ibid.
275. The Ohio project necessarily delayed matters. The debate was had on
May 10 and another on July 9 — a draft in ibid, 281-83 shows the result of
ccclxx
INTRODUCTION
thereafter have a quorum for business, it is possible that the influence
of members of the other committee was increased. Nevertheless it was
the land committee ("the committee" as he invariably called it)
upon which he attended, with which he debated and negotiated, and
throug'h which he ultimately secured from Congress a contract on
precisely his own terms.333
His diary indicated no relations with the committee in charge of
drafting the governmental plan beyond an invitation to read the bill,
with liberty to suggest amendments. His reference to the matter was
most casual. "As Congress," he wrote in his diary for July 10, five
days after his arrival, "was now engaged in settling the form of gov-
ernment for the Federal Territory, for which a bill had been prepared,
and a copy sent to me, with leave to make remarks and propose amend-
ments, and ... I had taken the liberty to remark upon [it], and to
propose several amendments, I thought this the most favorable oppor-
tunity to go on to Philadelphia."334 Had Dr. Cutler been attending
the meetings of the committee working on a plan of government, and
arguing with its members changes in that plan as a condition of pur-
chase, as he was with the other committee, no one need have "sent"
each. After this second debate the plan was recommitted. This new com-
mittee on the Ordinance consisted of Carrington, Dane, Richard Henry Lee,
J. Kean, and Melancton Smith — ibid. 310 n. 3. Thus, as stated in the text,
the membership of the two committees was in part identical, and for a
further reason later stated in the text this was of practical importance.
333 The distinction is of course one of form. If in fact the parties were
at first, as he recorded in his diary, so far apart that there appeared "little
prospect of closing a contract," it was an impressive exhibition of skill by
which he gained his ends. His alliance with the Scioto speculators, by
means of which he obtained for the Ohio Company the favorable terms of
its contract, was harshly criticized. His defense is given in a long letter of
Nov. 19, 1788 to the Company's directors — Western Reseiwe Hist. Soc. Tract
No. 91 (1917), 119-33; he is also elaborately defended by Mr. Hulbert—
Records of the Original Proceedings of the Ohio Company, 1: 1-lv. There
seems to be no real evidence that the states with large backlands for sale
lacked friendliness to the Ordinance — see ante nn. 47, 239. Suspicion of its
influence was reported by Madison to Washington, April 16, 1787, Burnett,
Letters, 8: 579. Dr. Cutler found it expedient at one time to feign indifference
to a contract with Congress, even talked of turning to the states — W. P.
Cutler, Manasseh Cutler, 1: 296 — but only for a "desired effect." Dr. Poole
used these old suspicions (quoting Putnam's of 1784) as a basis for assert-
ing as a fact that "as a Massachusetts man he [Dane] was not in sympathy
with the scheme of Western settlement. . . . The directors expected nothing
from the Massachusetts delegation, and worked independently of them" —
Amer. Hist. Assoc. Papers, 3: 288. What about New York? — compare Cutler,
Manasseh Cutler, 1: n. on 303-4.
334 w. P. Cutler, Manasseh Cutler, 1: 242.
ccclxxi
ILLINOIS HISTORICAL COLLECTIONS
him the bill; he would have taken no "liberty" in commenting
upon it.
If in fact any provisions in that plan were made by the Ohio Coni-
pan}T a prerequisite to its purchase of land, it seems highly probable
that they would have included a prohibition of slavery, for the Ohio
Company grew out of the plan formed by officers of the Army in 1783
to establish a new state westward of the Ohio, and in that plan, among
provisions described by Timothy Pickering as "generally approved
of," "the total exclusion of slavery" was to be made "an essential
and irrevocable part of the Constitution ' ' of the state contemplated.33"'
Now7, the draft of the Ordinance as ordered printed on May 9
for a third reading on May 10 (which reading did not result in its
adoption, because of the presentation to Congress on the ninth of
General Parsons' memorial on behalf of the Ohio Company), con-
tained no provision on slavery. The Parsons memorial also contained
no word on slavery, and the draft remained without such as amended
in debates of May 10 and July 10, on which latter day Dr. Cutler
examined "the bill" and suggested amendments to it.330 So far as
335 O. Pickering, Life of Timothy Pickering, 1: 546; W. P. Cutler, op. cit.
1: 149, 158.
33<s It seems a!most certain that what Dr. Cutler received was the print
of May 9 with amendments made in the debates of May 10 and July 9, after
which it was recommitted. Its content at that moment is shown in Jour.
Cont. Cong. 32: 281-83; see ante ccxxxiv-v. The new committee, because ap-
pointed to deal with the situation created by Dr. Cutler's arrival, would very
properly have shown him the courtesy of asking for his suggestions of
further amendments. Cutler made suggestions on July 10 and left that
evening for Philadelphia — W. P. Cutler, Manasseh Cutler. 1: 242. He re-
turned on July 17 — ibid. 290.
A visitor in 1847 at Dr. Cutler's home (he died in 1823) saw "the Ordi-
nance of 1787 on a printed sheet," with a marginal notation that Dane re-
quested Dr. Cutler to suggest amendments, and that at his instance "was
inserted what relates to religion, education, and slavery" — ibid. 343. Note
that this printed "Ordinance of 1787" could not have been the printed draft
Dr. Cutler- saw; that the narration in the third person left unrevealed the
person in which the actual notation was written; that there was no state-
ment as to that, nor as to the handwriting, the time of writing, or by whom
written- — although the paper was shown by Dr. Cutler's son. Again, an-
other son, who visited Dr. Cutler in the winter of 1804-1805, left behind him
at death a written statement that his father told him he was responsible
for the slavery article of the Ordinance — ibid. 343-44. As against the ab-
sence of any claim in the contemporary diary, this second statement is poor
evidence. Very few writers have given any attention to either statement.
In the opinion of the present writer they should be wholly disregarded. Mr.
Barrett pointed out that there is no evidence of Dr. Cutler's ardent opposi-
tion to slavery; that in this same session of Congress he voted against a
bill to begin in 1805 the gradual emancipation of slaves in the District of
ccclxxii
INTRODUCTION
regards the Company, its records show that it made no demands
regarding slavery.337 If any of its leading members were resolved
personally to seek assurances on the subject, it would seem likely that
their efforts would have made at the beginning, through General
Parsons (whose letters show no trace of such matters) rather than
wait for action by Dr. Cutler. But it becomes incredible that there
could have been any suggestion by either man to the committee of Con-
gress— or, therefore, any personal agreement by members of the Com-
pany to seek a declaration by Congress — when one finds a similar com-
plete absence of any reference to slavery in Dr. Cutler's rather full
diary of his dealings with Congress. And, anyway, assuming he had
done nothing more than suggest on July 10 an amendment in the form
of an antislaverj' declaration, would he have not stayed in New York
to enlist support for it? Would he have left for Philadelphia on the
tenth, deeming that ' ' the most favorable opportunity " to be absent for
a week? Certainly not if he was one-tenth the humanitarian his ad-
mirers would have him be.
As a matter of fact no amendment was made. No report by the
committee to Congress ever included a declaration on slavery. It was
moved by Dane as an individual in debate, after the second read-
ing.338 It has been said that Dr. Cutler could leave, and did, in
Columbia — Evolution of the Ordinance of 1787, 76.
There is no reason to assume that Dane indicated to Dr. Cutler the
probable content of a report not yet drafted; they were not on confidential
terms — post n. 341. There is no reason to assume that Dr. Cutler asked for
important amendments which he did not deem worthy of mention in his
diary; for consider the trivia he did record. But Mr. Dunn and others have
suggested that he did make such suggestions — ante n. 329, post nn. 345,
364, 366. Even Mr. Barrett (and I suppose that means with the approval
of Professor Howard) leaned in this direction in his thesis — Evolution of
the Ordinance of 1787, 71-72; but compare his initial "if" and "it is likely"
with his "no doubt" a few lines farther on.
337 a. B. Hulbert, Records of the Original Proceedings of the Ohio Com-
pany. Mr. Hulbert remarks (he discusses none of these problems of author-
ship), "There is but a single mention of the Ordinance of 1787 in the entire
records of the Ohio Company from 1787 to 1796" — ibid. 1: xcv. Its entire
attention was on the purchase of land — xcvi. In the face of all evidence one
reads in Dr. Cutler's biography: "His first effort was to attend to the organic
law" — W. P. Cutler, Manasseh Cutler, 1: 342.
338 The official committee report of June 11 shows nothing — Jour. Cont.
Cong. 32: 320 seq. Dane wrote years later, but correctly: "The . . .
slave article as it is in the ordinance of '87, was added on the author's mo-
tion, and, as the journals show, was not reported from the committee" —
Dane, Abridgment, 9 (app.): 75. When was it added? As the records now
stand, there are both a manuscript and a printed copy of the report of July
11. The printed copy has on it manuscript alterations by Charles Thomson
ccclxxiii
ILLINOIS HISTOEICAL COLLECTIONS
perfect peace of mind, "for lie had in his pocket the draft of the Ordi-
nance which was to be reported to Congress next day," and "confi-
dent that it would contain" — though it did not — "the article pro-
hibiting slavery, ' ' which had been ' ' obviously agreed upon in com-
and Grayson, and has attached to it Dane's manuscript copy of the slavery
declaration. It is stated that "the corrected printed jorm represents the
second reading on July 12" — Jour. Cont. Cong. 32: 314 n. 1 (italics added);
that is, obviously, without the attached slavery article. Dane tells us that
this was moved by him, and adopted, "after we had completed the other
parts"— letter of July 16, 1787 to King, Burnett, Letters, 8: 621. The attach-
ment of the article to the bill as it stood after the first reading (unaltered
since at least 1820 — ante n. 317) suggests that it was to be moved in debate
after the second reading on July 12; and as Peter Force so stated the fact
in 1847 when he may have had additional evidence for its accuracy — W. H.
Smith, St. Clair Papers, 2 : 611, 612 — it may well be so taken.
Dr. Cutler recorded no criticism of Dane's actions, but after the happy
outcome criticism would have had little point. Dane's postponement of his
motion was probably wise, and his explanation reasonable. "When I drew
the ordinance ... 1 had no idea the States would agree to the sixth article
... as only Massachusetts of the Eastern States was present," — this was
true of New England states from July 6 to July 13 — "and therefore omitted
it in the draft; but finding the House favorably disposed on this subject, after
we had completed the other parts, I moved the article, which was agreed
to without opposition" — letter of July 16, Burnett, Letters, 8: 622. "When
the ordinance was . . . under consideration, from what I heard, I con-
cluded that a slave article might be adopted, and I moved the article as it
is in the ordinance. It was added, and unanimously agreed to, I thought
to the great honor of the slave-holding states" — letter of July 16, 1787 to
King, in Burnett, Letters. 8: 622. The slavery article is further discussed
by Dane — its form, its actual source as used, and Dane's responsibility for
it — in his letter to Webster of 1830 — Mass. Hist. Soc. Proceedings. 1867-
1869: at 477-78; and in his Abridgment. 7: 443, 446 and 9: 75.
Dr. Poole assumed a committee agreement on the clause before July 11,
its omission by Dane in the report of that day (though he made no report),
and its "restoration" on July 12 — Amer. Hist. Assoc. Papers, 3: 290, 293.
He therefore wrote that Dane's failure to include the slavery compact in
the bill of July 11 and July 12 showed "his lack of interest in the subject.
It tends to confirm the suspicions of him which Dr. Cutler had expressed" —
Amer. Hist. Assoc. Papers, 3: 293. Pickering and King, friends whose anti-
slavery sentiment was very strong, seem always to have accepted Dane's
good faith. The only "suspicion" voiced by Dr. Cutler regarding Dane was
of July 19, with respect to the land contract — W. P. Cutler, M anas s eh Cutler.
1: 294 — ''Dane must be carefully watched"; which only meant, in holding
voters for the land contract, in which Congress finally agreed to Cutler's
terms, with Dane's affirmative vote. McMaster gave primary credit to Gray-
son for the antislavery article — History. 1: 508. As respects its adoption.
that is highly plausible. Hinsdale, following Bancroft, gives honor to R. H.
Lee, Jefferson, King, Dane, and Grayson — Old Northwest, 273-74; which is
quite correct, if naming the chief actors (Lee aside) for freedom in Congress,
but omits honor to Timothy Pickering, whose two letters to King seemingly
led to the King motion of March 16, 1785 — see C. R. King, Rufus King, 1:
282-87. But all this — well known to Dane — has nothing to do with the
question whether any other was more responsible than himself, or as much,
for including the article in the Ordinance.
coclxxiv
INTKODUCTIUN
mittee. "339 These are only surmises, and even as such they seem to
be wholly without basis. Cutler had met with the committee, the day
after its appointment, on the morning of the tenth — almost certainly
before the session of Congress.340 It made no such recommendations
to Congress that day, and the debate of that day, as just above stated,
left the plan without such provision. There is no scintilla of evidence
that the committee had made decisions or had given Dr. Cutler any
assurances.341
It seems to be an inescapable conclusion that neither the Ohio
Company nor Dr. Cutler was in any degree responsible for the anti-
slavery clause. The latter 's reference to the Ordinance after that
clause had been incorporated into it was as casual as the above refer-
ence to it in its earlier form : ' ' Called on members of Congress . . .
Was furnished with the Ordinance establishing a government for the
Western federal territory. It is in a degree new modeled. The amend-
ments I proposed have all been made except one."342 New modeled
indeed! Dane had added between July 9 and 13 all the matter of
the six compact articles with two very minor exceptions. Plainly,
Dr. Cutler had seen nothing wrong in the absence of those matters
from the draft he had examined on the tenth ; had, in effect, approved
their absence343 — though many a layman north and south, such as
Pickering and King and Grayson, would certainly have been more
sensitive. But, Dane having inserted these matters, what a cold
comment was Cutler's, considering that he was a minister of the
gospel, upon provisions which purported ,(at least) to establish for-
ever in the territory he was buying the traditional liberties of English
339 Poole, Amer. Hist. Assoc. Papers, 3: 292-93.
340 Compare his two sessions with it on July 9 — W. P. Cutler, Manasseh
Cutler, 1: 236, 237 (the first before, the second after, the appointment of
the new Ordinance committee).
341 if we may resort to surmises, it seems possible that the committee
were unwilling to risk the rejection of the Ordinance and new difficulties
in the land negotiation by inclusion of the slavery article. All voted for it,
however. As for Dane's having communicated to Cutler his plans for the
draft of July 11, that confidence seems unlikely. Though natives of the same
county, and neighbors, they were evidently not friends nor even well known
to each other — cf. W. P. Cutler, Manasseh Cutler, 194-95, 234. Their tem-
peraments were very unlike, and it seems highly probable that they were
uncongenial.
342 w. P. Cutler, Manasseh Cutler, 1: 293— more than a full day after his
return to New York.
sis Compare Dr. Burnett's remark — E. C. Burnett, The Continental Con-
gress, 685.
ccclxxv
ILLINOIS HISTORICAL COLLECTIONS
subjects and to add liberty for Negroes!3*4 Having now considered
the relations between Dr. . Cutler and the Ordinance committee in a
general way, and the antislavery declaration in particular, it remains
to consider specifically the other parts of the Ordinance of 1787. If
the Ohio Company or Dr. Cutler had no direct or formal connection,
so far as any evidence exists to show it, with the antislavery clause,
one certainly should not, without evidence, attribute to either credit
for any other clauses, unless as confessedly pure speculation.345
It is of first importance to emphasize one point before proceeding
further. Dane disclaimed "originality" save as regarded two impor-
tant matters, and some minor ones. But this meant originality in the
idea; that there was no copying in those cases from any source ; as
regarded, in particular, the clause against impairment of contracts
and that bespeaking fair treatment of the Indians. In disclaiming
originality in that sense as respects the rest of the Ordinance, he did
not disclaim initiative in assembling and reforming those other
portions. Some writers seem to have understood him in this second
sense, and have offered with reckless abandon suggestions as to who
might have suggested to him the inclusion of one or another matter.
With few exceptions these suggestions are without support by either
evidence or logic. It is essential to keep the evidence and the specu-
3i4 Compare Dane's lifelong pride in having inserted in the third com-
pact a declaration intended to protect the Indians.
345 The thoughts of Mr. Winsor were almost as extreme as Mr. Poole's
in behalf of Dr. Cutler. A month having passed after General Parsons pre-
sented his petition {ante n. 329), and Cutler being the new agent of the
Company, he "now . . . showed that he was determined, if land was pur-
chased, that a due recognition should be made in the pending ordinance of
those social and political principles which had been formulated of late in
the constitution of Massachusetts, and in the laws of the States which the
new era had fashioned .... on July 9, the ordinance was recommitted
to see if it could not be modified to suit the demands for which Cutler
stood. . . . the prospect seemed good of combining into a code of funda-
mental principles the numerous social and political ideas which were flying
about. . . . particularly a demand for the extirpation of slavery north of
the Ohio. Cutler was in his element in standing as the champion of free-
dom. . . . The other points upon which Cutler insisted were more easily
carried. Such were reservations of land for the support of religion and
education .... the draft of the ordinance was submitted to Cutler for
his scrutiny, and under his influence, doubtless, some other of the final social
provisions of the instrument found their place in it. With these amend-
ments, it urns reported back to Congress on July 11. and went promptly
through successive readings" — Westward Movement, 282-83; italics added.
Thus, to sustain pure generosity Mr. Winsor wrecked the record facts.
ccclxxvi
INTKODUCTION
lation distinct. Not, however, out of any special tenderness for Dane,
who was himself — particularly in his attitude toward Jefferson346 —
notably hypercritical and ungenerous.
The content of the Ordinance may be described in various ways,
but it may be well to follow Dane and describe it as consisting of a
"temporary" and a (supposedly) "permanent" part. The first
consists in turn of two distinct sections. It begins with provisions on
"The titles to estates, real and personal, by deed, by will, and by
descent ; also personal, by delivery. ' '347 Some internal evidence would,
of itself, strongly suggest Dane's introduction of these provisions.348
346 In all his statements Dane necessarily recognized the claims of King
and Jefferson — see his Abridgment, 9 (app.): 75 and letter to Webster in
Mass. Hist. Soc. Proceedings, 1867-1869: 477-78. Nevertheless Dane did not
do Jefferson full justice. He should have admitted that although the slavery
provision in the ordinance of 1784 was less radical than that of 1787 in that
it postponed the exclusion of slavery to 1800, it was more radical in that
its exclusion applied to territory south, as well as territory north, of the
Ohio. The truth is that, for the reasons just stated, Dane did not take his
slavery article from Jefferson's {Jour. Cont. Cong. 26: 277). Nor did he
take it from King's notwithstanding that they were alike in applying im-
mediately and in being applicable to lands north of the Ohio alone (ibid.
28: 164). He took it from King subject to the addition of a fugitive-slave
proviso — which was one of two restrictions imposed upon King's by a com-
mittee to which it was referred (ibid. 239 — the other being a postponement,
as in the case of Jefferson's, until 1800).
Again, if not disingenuous, Dane was certainly hypercritical of Jeffer-
son in arguing that the latter's ordinance would have left slavery "in very
considerable parts of the territory forever" . . . especially in the parts owned
for ages by French Canadian and other inhabitants." True, Jefferson made
no reference to them in any connection, and Dane did; but it will be seen
below that his reference was not a prohibition of slavery, nor even a refer-
ence to it. After all, both men knew that the Illinois Country was part of
Virginia and northwest of the Ohio, and would have been governed by the
provision in Jefferson's ordinance.
Dane's capacity for prejudiced reasoning was also manifested in arguing
up to the end of his life that the Ordinance — that is to say, a statute —
was a northern production because most of the "compacts" in it came from
the constitution and laws of Massachusetts, and he, a northerner, put them
together — Abridgment, 9 (app.): 76. As a matter of literary construction
this is true. But Dane was commenting on the Webster-Hayne debate as
respected sectional credit for the statute; and Bancroft, and long before
him Senator Benton, were manifestly correct in contending that the statute
was more a southern than a northern measure — adopted, to be sure, by the
votes of an equal number of northern and of southern states, but with four
of the former and but one of the latter absent. Bancroft, Formation of the
Constitution, (1882 ed.) 115, (1896 ed.) 289; Register of Debates in Con-
gress, 6: pt. 1, pp. 60-62 (Jan. 2, 1830— Webster), 447-50 (May 21— Benton).
347 Dane's description, copying which will facilitate a reader's under-
standing of subsequent quotations.
348 Mr. Dunn, overlooking the early appearance of these provisions, re-
marked: "It is possible that Cutler may also have suggested providing
ccclxxvii
ILLINOIS HISTORICAL COLLECTIONS
But even in the absence of such evidence, it is to be noted that nobody
has ever challenged his claim of having introduced them. Their vast
social importance, particularly that of the rules of intestate inheri-
tance, has already been emphasized.349
The second portion of the so-called "temporary" part is the
working or administrative plan of territorial government. It is im-
possible to assign individual initiative as respects the most illiberal
features of this plan. Immediate self-government was abandoned,
and a first stage of nonrepresentative government introduced, from
the beginning of the revision of Jefferson's ordinance by Monroe's
committee, and the absolute A'eto and other extraordinary powers of
the governor were in the revised plan from the outset.350 This power
to dissolve the general assembly, which Monroe included in his first
temporarily for the descent and conveyance of land, as it was of immediate
importance to his company"- — Indiana, 208.
The internal evidence of Dane's authorship is as follows. He was three
weeks on the committee, was put on it again after an interval of six weeks
(ante n. 158) and in the report submitted the next day (Sept. 19, 1786) the
intestate provisions appeared for the first time — Jour. Gont. Cong. 31: 670.
Dr. Johnson, the only other lawyer who might be expected to favor such
views had long been a member without their appearing. Dane was fresh
from comparative study of the laws of the states and these provisions were,
in general, taken from the Massachusetts statute book. These facts strongly
suggest his authorship. Mr. Barrett noted the Massachusetts source of
the provisions — J. A. Barrett, Evolution of the Ordinance of 1781, 58; Dane,
Abridgment, 7: 389-90; letter to Webster quoted in next note.
These provisions were temporarily removed from the plan sometime
between the report of Sept. 19, 1786 and the debate of May 9, 1787 — Jour.
Cont. Cong. 31: 670 and 32: 281. Their restoration was undoubtedly due
to the quality in Dane to which Judge Lowell testified — ante n. 324.
sis Ante cccxi-xii.
They abolished primogeniture (and though taken in general from Massa-
chusetts law did not give a double portion to the eldest son), preference of
males over females, and distinctions between relations of the whole- and
half-blood. For the tendencies of the day see R. B. Morris, Studies in the
History of American haw, ch. 2; W. C. Webster, "Comparative Study of the
State Constitutions of the American Revolution," in Annals of the American
Academy of Political & Social Science, 9: 380, 411. Dane was proud of this
contribution. Long afterward he wrote of them to Webster: "These" — the
compact articles- — -"and the titles to estates, I have ever considered the parts
of the Ordinance that give it its peculiar character." "These titles were
made to take root ... in 400,000 square miles. Such titles . . . are, in
their nature, in no small degree permanent; so, vastly important. I believe
these were the first titles to property, completely republican, in Federal
America; being in no part whatever feudal or monarchical" — letter of March
26, 1830 in Mass. Hist. Soc. Proceedings, 1867-1869: at 477. He claimed
originality only in slightly modifying statutes so as to make his provisions
"more purely republican and more completely divested of feudality than any
other titles in the union were in July, 1787" — Dane, Abridgment. 9 (app.) : 74.
a™ Ante ccxc-xci.
ccclxxviii
INTKODUCTION
report but which was thereafter omitted, had reappeared before May
1787351 and was thereafter retained ; but there is no evidence on which
separable responsibility for this revival can be attributed to any
individual.
The Ordinance compelled the governor and judges to "adopt"
laws of the original states, and the wording of this clause was exces-
sively vague and bad, though the power as exercised on the southwest
frontier and later in the Northwest Territory was simple and sen-
sible.352 But bad as was the Ordinance's wording it was no more un-
workable than Jefferson 's would have been ; it was worse only be-
cause Jefferson provided a preferable alternative,353 and the Ordi-
nance provided none. The provision went through several stages,
which clearly evidence the committee 's perplexity. Since Dane had
the last opportunity for an uncontrolled revision, and' some of the
provision's faults are both obvious and easily removable, he must
bear responsibility for the clause's poor form. The worst result of
its defects was to give Congress opportunity to make itself ridiculous
in reprimanding the Territory's officials for being sensible in its
interpretation.354
The idea that territorial inhabitants, as soon as they paid any
taxes, should have "a voice in Congress" had been suggested by
Silas Deane in 1776, 355 and from Thomas Paine had come the more
definite suggestion that a new territory should be "immediately in-
corporated into the Union" with "its immediate representation ad-
mitted into Congress, there to sit, hear and debate on all matters, but
not to vote" for a fixed term of years.356 It seems obviously fair to
assume that Jefferson knew both these writings, and borrowed from
them the provision of his ordinance, which Monroe had discarded.357
To Dr. Cutler, as already noted, credit is indirectly due for its
revival.358
However desirable Dane mav have deemed the restrictive char-
35i ma.
;i52 Ante at notecall 264 and post ccccviii-x seq.
sss Compare ante ccliv and post ccccii-v as respects initiation of representa-
tive government under the constitution and laws of a chosen state.
354 Post ccccxiii-xiv, ccccxxvi-vii.
355 Silas Deane's letter of Dec. 1, 1776 — ante n. 225.
356 Thomas Paine's Public Good (1780). See ante n. 225.
35T Ante cclvi and ccxci.
sss Ante n. 330.
ccclxxix
ILLINOIS HISTORICAL COLLECTIONS
acter of the Ordinance's governmental plan to be in 1787 — and then
he emphasized it359 — he naturally claimed no particular credit for it
in later years in comparison with the "compacts" and the "titles
to estates."360
Passing- now to the first and second of those compacts, of course
their value lay in the fact that they expressed the Anglo-American
tradition of personal liberties. They could have been taken from
various places, but Dane took them from the constitution or laws of
Massachusetts.361 The original introduction into the Ordinance of
the guaranty of the rights to jury trial and to the writ of habeas
corpus took place in the Johnson report of September 1786, and the
circumstances would point to Dane's influence exactly as in the case
of the provisions on estates.36- They were later transferred to the
second compact article. It is at the end, also, of this same article that
the clause against impairment of contracts is placed. Many lawyers
would have applauded the introduction of the article, certainly none
more heartily than Richard Henry Lee, with whom Dane had so much
in common. Their rivalry as claimants for the credit of its insertion
has been earlier referred to.363 Certainly no one would more likely
359 Ante at notecall 213.
360 "The organization, providing officers to select or make, to decide on
and execute laws, being temporary, was not deemed an important part of the
ordinance of '87. Charles Pinckney assisted in striking out a part of this
in 1786" — Dane, Abridgment, 9 (app.): 75. {Query: in view of the next
quotation, at end, should not "striking out" read "striking off"?) "The
temporary parts that ceased with the territorial condition . . . soon pass
away, and hence are not important. . . . Hence, whenever I have written
or spoken of its [the Ordinance's] formation, I have mainly referred to
these titles [to estates] and articles [of compact]; not to the temporary
parts, in the formation of which, in part, in 1786, Mr. Pinckney, myself, and,
I think, Smith, took a part" — Webster letter, in Mass. Hist. Soc. Proceedings.
1867-1869: at 477. "The 3d part . . . consists of the six fundamental
articles of compact, expressly made permanent, and to endure forever"; —
see ante at notecall 52 seq. — "so, the most important and valuable part of
the Ordinance. These, and the titles to estates I have ever considered the
parts of the Ordinance that give it its peculiar character and value" — ibid.
?>fil See the quotations by Mr. Barrett, Evolution of the Ordinance of 17S7.
60 seq. Dane so stated in his Abridgment. 7: 389-90. "Generally, when
persons have asked me questions respecting the Ordinance, I have referred
to the Ordinance itself, as evidently being the work of a Massachusetts
lawyer on the face of it" — letter to Webster, ante n. 360, at 477. "If any
lawyer will critically examine the laws and constitutions of the several
States, as they were in 1787, he will find the titles, six articles, &c, were
not to be found anywhere else so well as in Massachusetts, and by one who,
in '87, had been several years in revising her laws" — ibid. 479.
862 Ante at notecall 348.
sea Ante cccxi, cccxii. Both and Richard Henry Lee had joined the
ccclxxx
INTRODUCTION
have thought of it than a conservative lawyer from Massachusetts,
where Shays' Rebellion had just taken place. But nothing, also, is
more probable than that Dane and Lee had talked of it, and that
each might say he had the idea first.
As respects other matter in the second compact article, there is
no evidence that Dane did or did not, as to any provision, act on the
suggestion of others. Mr. Dunn and others have made suggestions
that are wholly speculative.364
There was nothing of much novelty in the exhortation in the third
compact regarding religion, morality, and education. No doubt many
would have thought them then, as do some today, the noblest words
in the instrument. They had a large background, mainly in New
England.365 Dane may have received suggestions that they be included ;
committee after Monroe and his group (ante nn. 319, 332) had prepared a
governmental plan as "tonic" in most respects as could be desired. But in
a direct guaranty of property rights they made a great addition. Such a
guaranty must have been universally desired, but since it was state legisla-
tures that had been impairing contracts there was no hope for relief otherwise
than through the general government. The old Congress, through the Ordi-
nance, gave the guaranty as against territorial legislation (and supposedly
as against legislation by the new states to be formed in the Northwest) ; the
new Constitution gave it as against all states. On the claims of Dane and
Lee see Dane, Abridgment, 7: 450 and 9 (app.) : 76; Lee to Washington, July
15, 1787 (in which, however, he made no claim) — Burnett, Letters. 8: 620;
Lee to G. Mason, May 15 (showing his desires for restraint on state legisla-
tion)—J. C. Ballagh, ed., Letters of R. H. Lee (2 vol. 1911-1914), 2: 421.
See also Carter, Territorial Pajiers, 2: 46 n. 24; Univ. of Pa. Law Rev. 95:
344-45; Madison in No. 44 and Hamilton in No. 7 of The Federalist.
36* Continuing his efforts to give all possible praise to Dr. Cutler, Mr.
Dunn says: "Possibly, too, he may have suggested the first, and the greater
part of the second articles of compact, but these might with more plausi-
bility be assigned to Richard Henry Lee. The first secures freedom of con-
science, and the second personal and property rights. Both were favorite
dogma with Virginians of Lee's school" — Indiana, 208.
There were perhaps no other men in Congress who would have given
to all these personal liberties the emphasis given them by Dane and Richard
Henry Lee, both of whom opposed adoption of the Constitution as creating
too strong a government, and in particular because that instrument lacked
a bill of rights — E. C. Burnett, The Continental Congress, 694-98. Theic
insertion was in accord with American tradition (ante clxxxiv-v), as was
proved by the prompt amendment of the Constitution. Here, too, then
Dane's (or Lee's) good judgment was upheld by the report of the committee
and by the auction of Congress in 1789 in submitting the bill-of-rights amend-
ments to the states.
36.-, Professor Turner found the origin of federal grants for education in
the New England practice, in land grants for new towns, of making such
reservations — The Frontier in Amer. History, 74. In the army officers' plan
of 1783 there was provision for schools and academies — O. Pickering, Life
of Timothy Pickering, 1: 546, or in W. P. Cutler, Manasseh Cutler, 1: 157.
The same was true of Bland's plan of 1783 — Jour. Cont. Cong. 24: 386.
ccclxxxi
ILLINOIS HISTORICAL COLLECTIONS
some writers have thought Dr. Cutler, as a clergyman, particularly
likely to have done so; and claims were made by his descendants
that he did so, as in the case of slavery.360 This is quite possible,
although the evidence, as already stated, is unsatisfactory. On the
other hand, a man sufficiently interested in education to be one of the
important early benefactors of Harvard, and sufficiently idealistic
to contribute and take pride in the plea for honorable treatment of
the Indian,367 perhaps needed no suggestions. Moreover, Dane was
close to Rufus King, in sympathies and in association with the Ordi-
nance's preparation, and Timothy Pickering had pressed these mat-
ters on King in 1785. 368
The fourth compact was taken almost wholly from Jefferson's
ordinance. The importance of the provisions was very great. As
already said,369 their selection by Jefferson as fundamental in a scheme
of territorial government evidenced his statesmanship, and their re-
vival by Dane after they had been dropped from the governmental
plan by his predecessors proved his good sense. They were not, how-
ever, original contributions by either.370 To these borrowings from
Rufus Putnam in his letter of June 16, 1783 to Washington in behalf of the
officers' plan urged provision for the ministry — W. P. Cutler, op. cit. 1: 171;
and the Vandalia grant provided for this — A. B. Hulbert, Ohio in the Time
of the Confederation, xviii.
see Mr. Dunn said: "To Dr. Cutler may safely be assigned the origina-
tion of all of the third article of compact except what refers to the Indians"
— Indiana, 208. And for this he does have a reason — 216, also W. P. Cutler,
op. cit. 1: 294. No doubt these provisions would fall under the "social and
political ideas" for which Mr. Winsor wished to give Cutler credit — ante n. 345.
Mr. Merriam {ante n. 4) had earlier credited him with this contributio'n.
367 Ante mi. 322, 324. Dane was extraordinarily active in committee
work relating to Indian affairs in Congress.
sgs o. Pickering, Life of Timothy Pickering , 1 : 509.
sfio Ante nn. 211, 212.
3to As Dane said, he took six provisions of his fourth "compact" from
Jefferson's ordinance — compare Jour. Cont. Cong. 26: 277 with 32: 341. In
j)rder that what follows may be better understood they may be enumerated:
(1) That the territories should forever remain part of the Confederation,
(2) subject to the Articles and to the acts of Congress thereunder, (3) sub-
ject to pay their proportionate part of the Confederation's debts, but for-
bidden (4) to interfere with the Confederation's primary right of disposing
of the soil, or (5) to tax its property, or (6) to tax the lands of nonresident
proprietors higher than those of residents.
Now, two of these, nos. 4 and 6, had not been in Jefferson's original
report (March 24, 1784 — ibid. 279 n. 1; and who added no. 4 the writer has
not noted; but the addition of no. 6 was moved by Elbridge Gerry, Jefferson
seconding the motion — April 21, 1784, Jour. Cont. Cong. 26: 257. It is plain
that divisions of opinion on such matters continued: for the first report
ccclxxxii
INTRODUCTION
Jefferson there was added in the fourth article the provision on free
navigation of the Territory's inland waters. Its first appearance in
Congress was in a motion made a year earlier by Grayson, but the
honor of first suggesting the importance of such a provision belongs
to Timothy Pickering.371
Compact Article V — relating to the creation of new states from
the Territory — was the result of years of discussion in Congress, and
had been included in every draft of an ordinance since 1784. And
Article VI, on slavery, has already been considered.
That Dane wrote the Ordinance as presented to Congress is not
open to question, for it is in his writing. If one did not know by
the writing, there is considerable force in Dane's view that the style
indicated the author. Often, he said, the first draft of his law
writings had been "reduced half, or more. This naturally ends in
a studied, compressed style, rather hard . . . and this is the style of
the Ordinance, courteously denominated, in the discourse men-
tioned372 'a sententious skilfulness of expression'."373 The style was
in fact poor, the joinder of the different parts of the Ordinance
(May 10, 1786) of Monroe's committee to revise Jefferson's ordinance pre-
served only two of these provisions, nos. 3 and 6 — Jour. Oont. Cong. 30:
254; and the report of July 13, 1786 retained only no. 3 — ibid. 405. Rufus
King moved the reinsertion of no. 6, and also a resolution which would have
covered nos. 4 and 5 — ibid. 30: 406 n. 1. The next report — of Sept. 19, 1786
from Judge Johnson as chairman — included nos. 3, 4, 5, and 6 — ibid. 31: 672.
And such remained the situation up to and including July 9 — ibid. 32: 281
n. 1, 283. But Dane, in addition to retaining these four went back to Jeffer-
son for nos. 1 and 2. On those two see ante nn. 8-10.
The point is that none were Dane's, some were not Jefferson's, probably
none were King's, but undoubtedly all had some history in Congress (and out-
side) which the sources do not fully reveal. But the statesmanship of
Jefferson in first uniting them, and the sound judgment of Dane in again
uniting them, seem obvious.
The omission of nos. 1 and 2 was doubtless due to doubts regarding
the status of the territories. Wholly omitted, also, alike from the final
Ordinance of 1787 and its earlier drafts above referred to, was Jefferson's
provision that both the temporary and permanent governments of a terri-
tory {ante ccliv) should be "republican" — ibid. 26: 275, 276; see ante at note-
call 7 and ccxcv.
37i Grayson's motion of May 12, 1786 is in Jour. Cont. Cong. 30: 263. See
Pickering to King, March 8, 1785, and later letters of King and Grayson to
Pickering, in O. Pickering, Life of Timothy Pickering, 1: 508-12. King
seconded Grayson's motion.
372 The Inaugural Discourse of Justice Story as Dane Professor of Daw
at Harvard — mentioned by Dane in his letter to "Webster — Mass. Hist. Soc.
Proceedings. 1867-1869: at 475.
ars ibid. -479.
ccclxxxiii
ILLINOIS HISTORICAL COLLECTIONS
clumsy, the phrasing of various individual clauses regrettably
vague.374
If one asks the more difficult question why he wrote it, — instead
of the chairman, Edward Carrington — the answer would seem to be
that it was not because the latter disagreed as to some things in it,375
since he did vote for it,376 but because Dane was of the type of hard-
working, methodical committeemen who always have materials col-
lected and arranged, and available for a report.377 The difficulties of
compilation were slight, for the plan of arrangement was simple :
The first part — Dane's own contribution on estates, and the reference
to descent and conveyances in the French settlements of the Territory
— had undergone at least one revision in committee ; the second — the
governmental plan — had been repeatedly revised ; the third — the
articles of compact — was readily compilable by one of Dane's informa-
tion and habits.
374 Dr. Poole's high opinion of the style is quoted post n. 377. President
Hinsdale thought it "admirable" in style, but not in arrangement — Old
Northwest, 269. Mr. Winsor, Westward Movement, 285 — and Mr. Dunn,
Indiana, 210 — justly criticized it. The latter gives the following passage,
without the explanatory brackets, as an example (from the "Webster letter
ante n. 372, at 479): "I have never claimed originality, except in regard to
the clause against impairing contracts, and perhaps the Indian article,
[which is] part of the third [compact] article, [this last] including, also
[references to] religion, morality, knowledge, schools, &c." This bad example
is, naturally, from a letter, in writing which one is prone to force accumulat-
ing new ideas into sentences already begun. There is nothing of the kind
in the Ordinance, and probably nothing so bad in any revised writing
of Dane. But it does illustrate Dane's own reference, in the text, to his
"compressed style, rather hard." It is incontestable, on the other hand,
that he improved in many places on the original form and arrangement of
materials embodied in the Ordinance, and at various points improved the
earlier drafts of the enactment. And some fatal obscurities he could not
on his own authority, have removed; for examp'e the statement of the rights
of the inhabitants of the old French settlements — although it was incon-
sistent with Virginia's statute of 1778 (ante n. 256), and inconsistent with
what Dane said (and wouldn't change) in Compact Article VI.
:!"s Ante at notecall 318.
3"6 Jour. Cont. Cong. 32: 343. Of 18 delegates present only one voted
against adoption.
:"7 it was not due, presumably, to Carrington's lack of industry, for Jef-
ferson described him as "industrious" — Writings (Ford ed.), 5: 150. Only a
man of the type described could have compiled Dane's pioneer Abridgment ;
and as Dane had less than twenty-four hours in which to compile and write
out the draft of July 11 for presentation to Congress, it seems reasonable to
assume that his mind was clear as to what should go in. The Ordinance
is not the only report written by Dane when not chairman of a committee —
compare Jour. Cont. Cong: 32: 206, 33: 455 and n. Probably other cases
could be found.
Dr. Poole, of course, thought it impossible that the instrument could
ccclxxxiv
INTRODUCTION
And, finally, it seems quite impossible to differ with Mr. Dunn's
conclusion "that, so far as any one man can be called the author of
the Ordinance of 1787, Nathan Dane was its author.378 That he
actually did independently contribute to the Ordinance the only
parts claimed by him to be "original" (not copied), is supported by
internal evidence in one case, seems highly probable (in view of his
activity and reports in Congress on Indian affairs) in the other case,
and has been challenged by nobody. Good internal evidence exists
that some other matters were also original with him, in the sense
stated ; namely, portions of the governmental plan, unspecified by
him because purely "temporary," or subjects in which he saw little
significance or took no pride.37y In short, his originality was greater
than he claimed. Beyond that he displayed wise judgment in resur-
recting his provisions on descent, in resurrecting such of Jefferson's
fundamental "principles" of the fourth compact as had been dropped
in earlier drafts, in adding to those fundamentals Grayson's motion
for the free navigability of the Territory 's waters, and in introducing
from the beginning into the legislation of our territorial system the
guaranties ("constitutional" as against territorial assemblies) of
personal liberties generally recognized in the constitutions of the
confederated states.
One or another member of Congress may, at one time or another,
have indicated to him views bearing on the topics of his report when
neither could have known he was ever to write it ; but after he had im-
mured himself to write it, presumably none could have done so. All
suggestions made to Dane by other persons as to what the report
should embody seem, consequently, utterly without basis or value.
have been so compiled "on the refined and complicated p'an so elaborately
explained by him many years later, — by one who had shown such indiffer-
ence to, and lack of knowledge on, the subject, as had Mr. Dane" — Amer.
Hist. Assoc. Papers, 3: 290. ("Indifferent" because he did not move the
slavery clause on July 11 — ante n. 338; as for lack of knowledge — presumably
in not realizing "the temper of Congress" — ibid. 293.) At that time the
original draft had not been found — ibid. 288. But the plan was not elaborate
— very simple, rather; and its style not at all "smooth, compact, and elegant,"
as Dr. Poole (thinking it was Cutler's, no doubt) once described it — -No.
Amer. Rev. 122 (1876): 225. It was not a task to require more than a frac-
tion of a full day.
3T« Indiana, 209. His conclusion was affirmed by C. R. King, the author
and editor of Rufus King's Life and Correspondence. 1: 291-92. Others have
at least described him as the "primary author" — A. C. McLaughlin, Con-
federation and Constitution, 125.
379 Such as those referred to in n. 360 and at notecall 362.
ccclxxxv
ILLINOIS HISTORICAL COLLECTIONS
Dr. Cutler, we know, suggested "various amendments," but we do
not know whether they were confined to the governmental plan ; the
writer, for reasons given,38" considers it virtually certain that they
were. But most of those Avho have credited him with specific portions
of the Ordinance have assumed them to have been among its compacts.
It is true, moreover, that among the changes made in the governmental
plan between July 9 and July 11 it is difficult to find "several" in
which it seems likely that he would have been interested.381 "We know
onry that all the amendments he suggested were adopted except one ;
and that one, identifiable and above credited to him, was a very im-
portant one in the governmental plan.
sso Ante following notecall 333.
"■« Compare the plan in Jour. Cont. Gong. 32: 281, showing how it stood
after the debate on July 9, when it was recommitted (to the new committee
— ante n. 332), with the draft reported July 11 — ibid. 314. As I would regard
the changes, I find ten of considerable substance. One made the Territory
divisible into two districts for governmental purposes, if later desirable:
four fixed requirements of residence or citizenship or property as qualifica-
tions for voting or holding different offices. In these five Cutler might have
been interested (none being in "the bill" he saw). In the other five I cannot
conceive his having, by any possibility, been interested.
ccclxxxvi
SECTION V
A REVIEW OF PRIMARY ADMINISTRATIVE PROBLEMS IN
EARLY TERRITORIES UNDER THE ORDINANCE
Introduction.
It remains to consider the actual administration of government
under the Ordinance of 1787, down to the admission of Illinois to
the Union or a little later. For this purpose particular attention
will be directed to the territories of the Old Northwest, but some
references will be made to other territories whose governments were
based directly or indirectly upon the Ordinance, completely or with
modifications, for at least a portion of their territorial existence.1
i The Southwest Territory, excluding the Ordinance's antislavery article
— C. E. Carter, ed., The Territorial Papers of the United States (1934 ),
4: 7, 11-12, 16; Mississippi Territory, with like modification — ibid. 5: 20,
145; Indiana Territory, with a liberalization as respected transition to repre-
sentative ("second grade") government — ibid. 7: 8; Michigan Territory- —
ibid. 10: 6; Illinois Territory, with modification as in Indiana — ibid. 16:
6, 7; Alabama Territory, government as originally in Mississippi — U. S.
Statutes at Large. 3: 371; Arkansas Territory, government as in Missouri —
ibid. 3: 493.
The situation in Orleans and Louisiana-Missouri territories was peculiar.
Both were for a time under unrestricted control by the president — see Carter,
9: 90 n. 10. It was not until passage of the act of Oct. 31, 1803 (ibid. 89—
"An act to enable the President ... to take possession of the territories
ceded by France" etc.) that Governor Claiborne of Mississippi Territory
and General James Wilkinson were named as joint commissioners (ibid. 94)
through whom the President's power was exercised until a regular terri-
torial government went into effect on Oct. 1, 1804. That government was
established by an act of March 26, 1804 (ibid. 202) which created the Terri-
tory of Orleans and District of Louisiana. The government of the former
was similar in centralization to that of the Ordinance (to which no refer-
ence was made), but with modifications; in particular, the judges had no
legislative functions, those being entrusted to the governor and a legislative
council (sees. 2-11, ibid. 203-10). By an act of March 2, 1805 (ibid. 405) the
preceding temporary government was replaced by one similar to that of the
Mississippi Territory, but with modifications, an all important one being the
establishment in Orleans of a representative legislature; so that its affairs
afford illustrations of administrative difficulties under the Ordinance only in
that second stage of government when they were greatly lessened in number
and gravity.
As respects the District of Louisiana, the act of 1804 (sees. 12-13, ibid.
211-12) made it administratively part of Indiana Territory, the executive
powers of the governor, the legislative powers of governor and judges, and
the judicial powers of the judges of the latter Territory being extended over
the former. The executive and legislative authorities were actually exer-
cised— F. S. Philbrick, The Laics of Indiana Territory, 1801-1809 (Illinois
Historical Collections, 21), cv n. 1, cxliv n. 3; Carter, Territorial Papers,
13: 172 and index s-.v. "Harrison, Gov. William Henry." An act of March
ccclxxxvii
ILLINOIS HISTORICAL COLLECTIONS
The fact that the whole history of our territorial system was
characterized by unrest is certainly irreconcilable with traditional
laudation of American democracy. That it was quite as true of terri-
tories whose population was from the first virtually wholly American
as it was of those whose inhabitants were affected by institutional
and social inheritances from an earlier foreign dominion is good evi-
dence that the fault lay in the character' of the governmental system.
It is true, indeed, that most of the misunderstandings between high
territorial officials which embarrassed administration of the early
territories were primarily attributable to temperament. With rare
exceptions, however, it was a provision of the Ordinance, or the ab-
sence of a provision therein, which gave occasion, and sometimes
justifiable cause, for collisions of temperament.
We have already summarily reviewed in the first section of this
introduction the problems of judicial organization in the early terri-
tories of which Illinois was once a part.
The Ordinance's brevity was no merit — although the long per-
sisting misunderstanding of the sense in which it was of constitutional
character presumably fostered a contrary view. Despite the long
time that it was under consideration by committees of Congress before
its adoption, very little thought indeed seems to have been given to
the details of its content and expression. Keference is here made to
its governmental plan, exclusively. With slight alterations, that re-
mained as James Monroe first drafted it f it would seem that upon
him and Dr. William Johnson — a member of his committee and his
successor as chairman — the blame must fall for most of the defects
that will be noted below. It had passed its second reading in Congress
and been ordered to a third reading when the first petition from the
Ohio Company blocked further consideration of it3 until Nathan Dane,
in drafting a new report between July 9 and 11, took the old govern-
mental plan which theretofore had been the Ordinance's sole content,
prefixed to that the introductory provisions which became its first
part, and added the six ' ' compacts ' ' that became its third part. Dane,
of course, lacked authority to alter the governmental plan that had
already passed a second reading in the Congress. He could be respon-
3, 1805 set up a new government over the District which was with very
slight modifications that of the Ordinance of 1789 — -ibid. 13: 92.
- Ante cclxxxix, cccii.
s Ante ccclxx, ccclxxii.
ccclxxxviii
INTRODUCTION
sible for its imperfections only on three assumptions : that as a statu-
tory expert he should have detected the Ordinance's defects; that he
should have moved in Congress amendments to cure them ; and that
in the last disquieted summer of that body's existence amendments
would have received attention. There is little — if any — reason to
believe that effective amendment would have been possible. It hap-
pens, also, that even the first assumption is hazardous, for Dane was
not interested in the governmental plan. Because it provided merely
for a "temporary" status he took no pride in it,4 and presumably had
given little thought to it beyond a general approval of its repressive
character.5
Only systematic legislation or systematic interpretations by the
attorney general could have cured the defects of draftsmanship, or
minimized the confusion they caused, and clarification by either
method was almost totally lacking. How little attention was given
to the Ordinance clearly appears from two striking facts. It was
stated in the fourth compact article (which Dane took in substance
and words from Jefferson's ordinance of 17846) that "the said terri-
tory shall forever remain . . . subject to the Articles of Confedera-
tion . . . and to all the Acts and Ordinances of the United States in
Congress Assembled, conformable thereto." The first Congress under
the new Constitution did not deem it necessary to change this lan-
guage,7 although the first italicized word was most inapt, involving a
momentous question if unaltered ; and the other italicized words had
no meaning under the new Constitution. The statutory act of the
Confederation had been voided by the Confederation's dissolution,
and had been replaced by the constitutional provision giving Con-
gress (which was no longer the states as united by delegates as-
sembled in Congress) the power to make all needful rules and regu-
lations respecting the territory of the United States. That two at-
torneys general of the United States should have cited the above-
quoted words of the original Ordinance, and have emphasized in so
doing the word "all," in construing the applicability to the North-
west Territory of a law of the new Congress,8 is sufficient evidence
* Ante n. 360.
s Ante ccxcv, cccxxiv-v.
u Ante ccclxxxii.
' Compare Carter, Territorial Papers, 2: 47, 203.
s The first was William Bradford, in an opinion of 1795, holding that an
ccclxxxix
ILLINOIS HISTORICAL COLLECTIONS
that tho.se words should have been eliminated in re-enacting the Ordi-
nance in 1789.° The attention of all departments of the new federal
government was absorbed in putting that into successful operation.
This, no doubt, was the chief reason why the Ordinance received such
scanty clarification.
The other matter which illustrates the slight attention given to
the initiation of government under the Ordinance is less striking but
more important. Preceding the establishment of the new federal
government in 1789, the officials of the Northwest Territory directed
their letters and reports to Charles Thomson, the secretary of the
old Congress. The Constitution gave the new Congress exclusive
power to dispose of and make rules and regulations concerning the
territory or other property of the federal Union. But Congress had
act of Congress taxing retail licenses for the sale of certain types of liquor
extended to the Northwest Territory because of a general principle "that
all the laws of Congress, unless local in their nature or limited in their
terms, are in their operation coextensive with the Territory of the United
States," and because of the provision in "the ordinance for their govern-
ment"— Carter, Territorial Papers, 2: 520-21. The "ordinance for their
government" was the statute of the new Congress, passed on Aug. 7, 1789 —
ibid. 203; whether that applied to the Northwest Territory, and whether
the territories of the United States are part of the "United States" except
as regards the international relations of the federal entity were constitu-
tional problems, but he did not mention the Constitution. See also Governor
St. Clair's destructive criticism of Bradford's opinion in a letter to the
Secretary of the Treasury — W. H. Smith, ed., The St. Clair Papers (2 vol.
1882), 2: 378-83. Secretary Wolcott's answer to an earlier expression of
St. Clair's views, and the latter's reply, are in Carter, Territorial Papers.
2: 521, 523-24.
The other opinion was Attorney General Charles Lee's, given in 1799.
He expressed surprise that anyone should question "the true rule . . . that
the General Laws of the Union reach every part of the United States" —
like Bradford overlooking the questions whether those words meant the
federal entity or the united states, and whether in either case the territories
would necessarily be involved — "unless a particular and express exception
be made." He also stated that the ordinance "of the 13th July 1787" estab-
lished this; and that this was not mere inadvertence is shown by the addi-
tional remark that all authorities in the Territory derived authority "from
the present constitution of the United States or from Congress under the
late form of government" — ibid. 3: 66. He evidently, therefore, attributed
some super-statutory character to the Ordinance.
9 Similar carelessness was shown in failing to provide for the appoint-
ment of general officers in the militia — -post n. 276. Also in failing to pre-
scribe before whom the governor should take his oath of office after the
dissolution of the Confederacy, the original Ordinance having provided that
it be taken before "the President of Congress," and no law of the new Union
having altered that provision. In Michigan Territory the fussy scruples of
Chief Judge Augustus B. Woodward made a mountain out of this molehill —
Michigan Pioneer and Historical Society Collections, 36: 213-17.
cccxc
INTRODUCTION
not convened or made any such regulations when the time came for
the officers of the Confederation to turn over to representatives of
the new Union the property and records of the old. Moreover, the
new Congress consisted of two houses and had no secretary. It thus
happened that Secretary Thomson, under instructions from Wash-
ington,10 delivered the territorial records to the Secretary of State.
Matters pertaining exclusively to Congress were thus confided to a
department of the executive. Four years later, when Governor St.
Clair had occasion to inquire of the Secretary of State, then Jefferson,
through what channel he should properly communicate with the
territorial judges, then supposedly in Washington, Jefferson replied
that "all the business of the Government" was apportioned among
three departments, to one of which "every possible matter" belonged;
and that everything not related to war or finance fell under the
Department of State.11 And so strong had this bureaucratic assump-
tion already become that Jefferson's successor, Edmund Randolph, in
remitting to the President a few months later copies of the laws of
the Northwest Territory accompanied them with this astounding com-
ment :
It was long doubted, whether it was the duty of the Executive to
lay them before congress. But upon a closer examination of the ordi-
nance, the propriety of the step flows from the right, reserved to
Congress, to disapprove these laws. For how are Congress to get
official possession of them, but by an official communication from the
Executive files, among which they are lodged?12
From another earlier, and equally astounding, letter13 from Randolph
10 E. C. Burnett, The Continental Congress (1941), 726.
ii Sept. 17, 1793— Carter, Territorial Papers, 2: 460.
12 Jan. 24, 1794 — ibid. 473. In the President's message (Jan. 21, 1795)
transmitting the laws to Congress he wrote: "As it appears to be conformable
with the intention of the 'Ordinance for the Government of the Territory
of the United States Northwest of the river Ohio', although it is not exr
pressly directed, that the laws of that Territory should be laid before Con-
gress, I now transmit you a copy of the last received by the Secretary of
State" — Annals, 3 Cong. 1-2 Sess. 37.
is On July 23, 1793 he had written to Jefferson: "You will find that a
limitation act has been disapproved by Congress. Perhaps the necessity of
laying the act before them will appear from the laws, which I miss. But I
confess, that it does not strike my eye in the act concerning the Southern
territory, the ordinance establishing the Northern territory, nor the [blank]
of No. Carolina. I will examine further" — National Archives: State Depart-
ment, Letters and Opinions of Attorneys General 1792-1810.
cccxci
ILLINOIS HISTORICAL COLLECTIONS
as attorney general to Jefferson when the latter was secretary of
state, it appears that the former referred in the above-quoted pas-
sage to his own "long doubts." It also appears that although in
earlier searches he had looked at the acts of the old Congress — finally
uncovering therein the provision of the Ordinance of 1787 as above
stated ! — this first Attorney General, under whose legal opinions the
Union was launched, did not discover in the Constitution the rules-
and-regulations clause that gave Congress absolute authority over
the territory of the Union.
Obviously St. Clair's interest in the matter continued, for he
later called Randolph's attention to the fact that the Ordinance re-
quired the Territory's officials to "report to Congress," that since
1789 there had been "no mode pointed out for those [their?] com-
municating directly with Congress," and that it had been "con-
ceived that the communication which went formerly through the
Secretary of Congress must now go through the Secretary of State. ' ,1+
No formal action was taken in 1789 ; none was ever taken. It may
be said that Congress, having never complained, must have been
satisfied, which is presumably true. It b}^ no means follows, however,
that the practice thus accidentally established was desirable, or should
have been accepted as such. Important consequences might well have
followed from a direct communication between territorial officials and
Congress. It would have established the immediate responsibility of
Congress ; action in an infinitude of cases would not have been post-
poned to executive initiation. It would have made plain to all men
the exclusive power of Congress ; very likely, the issue raised in Dred
Scott v. Sandford could never have arisen. But, all those specula-
tions aside — and returning to the point in illustration of which these
administrative curiosities have been adduced : the fact that Congress
acquiesced in being thus deprived of the immediate control of the
territories which it could have claimed under the Constitution ; and
equally the fact that Congress, in re-enacting the Ordinance of 1787.
explicitly conferred upon the president the power to appoint "all
Officers which by the said Ordinance were to have been appointed
by the United States in Congress assembled"15 — these facts of them-
i* Aug. 24, 1795 — Carter, Territorial Papers, 2: 535.
i'> The Ordinance explicitly declared that Congress should appoint the
governor, secretary, and (under the second stage of government) the legis-
lative council — ibid. 41, 45. Immediately after providing for such appoint-
cccxcii
INTRODUCTION
selves show that the powers were given little attention, and they
suggest that the supposed preoccupation of the Revolutionary genera-
tion with the division of governmental powers has been exaggerated.
Territorial Executive Problems.
These problems arose in considerable part from defects in the
Ordinance. Altercations between Governor St. Clair and Secretary
Sargent over administrative situations had become so general by 1793
that Edmund Randolph, in reporting to President Washington that
nothing in the executive journal of the Northwest Territory required
the latter 's personal attention, characterized it as "very little more,
than a history of bickerings and discontents. ' '16
The less important of these may be said to have arisen from the
necessities attendant upon the initiation of government in a vast and
unsettled region. The secretary's duties were perhaps heavy; they
certainly grew heavier while the governor's did not (at least not
Governor St. Clair's) ; and the secretarial salary was little more than
a third of the governor's. The Ordinance made the secretary respon-
sible for preserving the laws and other public records of the Terri-
tory, including a record to be prepared by him of the governor's
executive acts ; and for transmitting copies of all these records to the
central government.17 When St. Clair and Sargent were in the Illi-
ment of the governor and secretary it added: "there shall also be appointed
a court of three judges" (who, with the governor, constituted the legislature
under the first grade of government) without stating by whom; but else-
where there is a requirement that "the Governor, Judges, legislative Council,
Secretary, and such other Officers as Congress shall appoint" must take an
oath. Ibid. 41, 45. Compare 203. In a report by Levi Lincoln, Attorney
General, to President Jefferson in 1802 he admitted that this last passage
carried "a strong implication of the right of Congress, or, rather, of the
President" — was this alternative ironical? — "to appoint these three judges,
and I am informed, this has been the practice. Independent of this
pra[c]tice, upon the mere construction of the ordinance, I should have
hesitated [to express an opinion 1 against the right of the Governor to have
made even these appointments. The authority of making appointments is,
expressly, given to the Governor, in all cases, in which it is not otherwise
directed, and express positive provisions are not usually abridged by im-
plications"— ibid. 209.
is Ibid. 472.
17 In fact the Ordinance also explicitly conferred the same duty of for-
warding the laws upon the "governor and judges" — ibid. 42-43, compare
535; that is, upon the governor, the secretary, and the judges, singly or
collectively! Governor Claiborne of Orleans Territory (after having earlier
served as governor in Mississippi Territory) was still uncertain in 1805, not
cocxciii
ILLINOIS HISTORICAL COLLECTIONS
nois Country in 1790 of course it was necessary to have with them
copies of the territorial laws that were to be made known in the French
settlements. Sargent, however, declined to supply copies of the laws
to the county judges — though they must, without such, be almost abso-
lutely ignorant of the laws they were to enforce; "indeed," Governor
St. Clair wrote to the President, "the business of the office increases
so fast that it would be impossible to do it."ls Nevertheless, as new
counties were established Sargent did supply copies,19 and for this
unreasonably, as to just what were "the proceedings of the governor in his
executive department" — ibid. 9: 518. Secretary Griswold of Michigan Terri-
tory reported in 1807 that he had duly kept and preserved those proceedings
and the laws, but had in his possession nothing that could be called "public
records of the district"; that the governor and judges had appointed other
custodians of deeds and wills (as, of course, was done in all other territories),
and that if it was proper for him to have the legislative journals he begged
to be empowered to demand them — Michigan Pioneer and Historical Society
Collections. 31: 592. Attorney General Rodney gave an opinion that the
custody of the journals should be retained by the legislature — Carter Terri-
torial Papers, 10: 106. In fact. Congress had provided by a law of May 8.
1792 that the secretary's duties should be subject to regulation by territorial
legislation — ibid. 2: 396. By a "joint resolution" of Dec. 24, 1814 the General
Assembly of Illinois Territory gave the secretary custody of the legislative
journals. Post 181. After some decades passed Congress began to omit the
phrase "public records" in enumerating those of which the secretary should
be custodian.
is W. H. Smith, St. Clair Papers. 2: 179. He also declined to supply
copies to the territorial judges — Carter, Territorial Papers, 3: 319. The
laws were doubtless always available to them when the legislature met,
the governor and secretary being present — post n. 21. How the judges
managed on circuit does not appear. Secretary Sargent presented to the
legislature in June 1795 "a demand against the Territory, for dollars
on account of certified copies of Territorial laws, furnished by him ... to
certain public officers," unspecified. It was tabled. Ohio Archaeological
and Historical Publications, 30: 37.
Since our governmental traditions demanded some real publicity for the
laws, the problem of a printing press was important in every early territory.
In default of print, publicity could have been given by posting manuscript
copies, but this seems never to have been done; in the Northwest Territory
copies were never available. It seems to have been the custom in the Illi-
nois Country under the French regime to read the laws and proclamations
in court. In Upper Louisiana, under Spanish rule, important regulations
were read to assemblages of inhabitants called by proclamation. To some
extent this practice was continued in the American period. In Mississippi
Territory General Wilkinson, at the instance of Governor Sargent, ordered
to duty under the Governor an officer who was a competent printer, but
he was subjected by his brother officers to humiliations for performing such
menial work, and Wilkinson's successor ("Observing that an officer might
as well turn Taylor, or keep a Tavern at his Command, as to Print") re-
fused to consent that he continue the service unless on furlough. He was
therefore ordered away-— D. Rowland, ed., The Mississippi Territorial
Archives, 1798-1803, 1 (1905) : 179.
is Carter, Territorial Papers, 2: 295, 318.
cccxciv
INTRODUCTION
labor additional remuneration was ultimately provided by a territorial
statute.20
In addition to the preceding there were other duties; unavoid-
able, but onerous and possibly irritating. The Northwest Territory
was too extensive, and safe and passable roads within it too scant}7,
to permit of administration from a fixed seat of government. For the
convenience of the inhabitants, therefore, not only was the judicial
department ambulatory, but also the executive; and for the conveni-
ence of the governor and judges, who together constituted the legisla-
ture, that department was also to a considerable degree ambulatory.
Governor St. Clair by no means visited every portion of the Territory
yearly, as would certainly have been desirable ; neither did the terri-
torial judges regularly ride circuit yearly in its distant counties. But
Sargent was generally present wherever St. Clair and the judges
might meet as legislators,21 and at least on the Governor's long official
journeys within the Territory Sargent accompanied him,22 carrying
along with him "records of the Territory." On these trips, too, ac-
cording to his statements, he acted not only in his official capacity
but also, out of courtesy, as St. Clair's private secretary.23 Such
additional burdens of travel and labor were irksome. Naturally,
Sargent queried the necessity of accompanying* the Governor, em-
phasizing the burden of transporting the records (though St. Clair
was undoubtedly justified in replying that at least those whose trans-
portation about the Territoiy was permissible were "far from cum-
brous"), and the danger of their loss.24 However, when Sargent went
20 By act of June 22, 1791 — T. C. Pease, The Laws of the Northwest
Territory. H8S-1800 (I.H.C. 17), 43-44.
21 As illustrated by the legislative journal of the 1795 session — Ohio
Arch. & Hist. Publications 30: 38. If Sargent had made of the statutes a
copy for the use of St. Clair or of himself he need not have taken the
originals on long and dangerous journeys, which he seemingly did; com-
pare Carter, Territorial Papers, 2: 575, 579 with W. H. Smith, St. Clair
Papers, 2: 414.
22 Notably, in 1790 and 1795 when St. Clair went to the Illinois Country
— Carter, Territorial Papers, 3: 296-313, 439-43.
^Ibid. 2: 579.
24 Ibid. 560, 579, and 512. Whether or not they were bulky, with refer-
ence to transportation, depends, naturally, on what parts could be considered
properly transportable. St. Clair's views on that point (W. H. Smith, St.
Clair Papers, 414-15) were quite sound. The records in care of the secretary
of Mississippi Territory in its fifth year filled two boxes which are described
in Carter, Territorial Papers, 5: 253-55 (together with two barrels "of Books
papers. &c. Styled Spanish Records," ibid. 255).
cccxcv
ILLINOIS HISTORICAL COLLECTIONS
alone to Detroit, to organize civil government in that remote portion
of the Territory, he took with him, as acting governor, the territorial
seal and, seemingly, all the original territorial laws, if not other
territorial records.25
Clearly, few if any of the above matters should or could have
been regulated by statutory provisions. Some — for example, any
question as to what executive, legislative, judicial, or land records
could permissibly be carried around the Territory — might have been
regulated by the Secretary of State ; but it would seem that a common-
sense understanding between Governor and Secretary should have
sufficed. So St. Clair suggested, also, as respects a more important
administrative difficulty that was involved in Sargent's acts at Detroit.
The original Ordinance contained no provision for an acting governor
in case of a governor's absence. The act of re-enactment in 1789 did
provide that in case of the governor's death, removal, resignation, or
"necessary absence" the secretary should exercise his powers and
perform his duties.20 The provision, however, did not define "ab-
sence," nor did it refer to salary. Now, the secretary's salary was
seven hundred and fifty dollars, and the governor's (as governor and
superintendent of Indian affairs27) was two thousand;28 and as St.
25 Ante n. 21.
2fi Carter, Territorial Papers, 2: 203. Governor St. Clair was responsible
for the insertion of such a provision — ibid. 205, and W. H. Smith, St. Clair
Papers, 2: 416. When Governor Claiborne of Orleans Territory confused in
his accounts the functions of governor and secretary, Jefferson wrote to the
Secretary of the Treasury (April 24, 1805): "The office of the Secretary of
the territory is so completely the office of the Governor, that it requires no
great latitude of construction to identify them, because there is not a single
official act of his which may not properly emanate through the Secretary" —
ibid. 9: 443-44. (Jefferson also remarked that "with respect to Claiborne's
account I think his situation so totally different from that of all other
governor's as to justify peculiar indulgences." This referred to the cost of
living in New Orleans and to the obvious fact that various items of the
account were merely estimates. It did not refer to his legal position; under
the law of the time — ibid. 202 — that was not peculiar.)
27 See post n. 41.
28 Complaints by the secretaries against the injustice of expecting them
to perform, as acting governor, the duties of both offices for only the sec-
retary's salary were vain. Compare ibid. 5: 241-43, 249-51. By the time
our last territories were organized the salary of governors had risen to
$3500, of secretaries to $2500, and of judges (who started with $800) to
$3000. See M. Farrand, The Legislation of Congress for the Government of
the Organized Territories of the United States, 1789-1S95 (1896), 51 and
App. B (57-93; analyzing all statutes). Very rarely, if ever, could these
salaries have insured independence. Nevertheless they did attract some
extraordinarily able men, and doubtless a great many of fair abilities.
cccxcvi
INTRODUCTION
Clair, in seven years of his term, had then been outside the Territory
and Sargent performing all his duties for more than three and three-
quarters, the disparity in salary was understandably galling to Sar-
gent.29 It happened that St. Clair had prepared the way in Con-
gress for extending civil government to Michigan — with extra pay
for the trip by both of them, which the President recommended to
Congress; but since the latter had done nothing, and the President
had not ordered the trip despite that inaction, St. Clair was of the
opinion that Sargent's action was improper.3" The latter, however,
had long before sought advice from the Secretary of State regarding
the Governor's absence, and the propriety of the trip by himself if
St. Clair should not return in time to make it, and although the Sec-
retary's reply was only written after Sargent was near Detroit it
approved of his views/'1 The important points are, however, that no
matter which official was in the right both were within the Territory ;
that, in fact, St. Clair crossed the boundary before Sargent had
reached Detroit ;82 and that the complete governmental organization
of Wayne County lacked legality if the word "absence" in the Ordi-
nance meant "outside the territory" — as St. Clair, after precedents
of royalty, first interpreted it.ti:! However, the goings and comings of
royalty were notorious ; but as Sargent said, without a spirit of divina-
tion he could not knoAv when the Governor entered the Territory.
29 Carter, Territorial Papers, 2: 647-48 and W. H. Smith, St. Clair Papers.
2: 404, 406, 413 for the dates involved. (In the table on p. 648 the sum
total should be "3-6-15," but in the seventh line the number under "months"
should be 19. The date "1793" is correct— ante 416, 420, 429, 430-34, 437, 455,
456.) Both men were dependent on continued federal employment, but
Sargent (until his advantageous marriage in Mississippi Territory shortly
after going there as governor) was both poor and in an inferior and there-
fore more precarious position. See as to St. Clair — Carter, Territorial
Papers, 2: 312, 3: 212, and W. H. Smith, St. Glair Papers, 2: 393; as to
Sargent— Carter, op. cit. 2: 295, 480, 481, 579, 632, 3: 452.
sow. H. Smith, St. Clair Papers, 2: 404, 414.
31 Carter, Territorial Papers, 2 : 560, 565.
32 Sargent reached Detroit between Aug. 9 and 15, and his first official
act there (and probably his arrival) was on the latter date — ibid. 2: 564, 3:
447. St. Clair seemingly crossed from Pittsburgh into the Territory on
Aug. 14 — W. H. Smith, St. Clair Papers, 2: 404. In 1814 Governor Cass was
instructed that "in the event of the Enemy approaching Michigan" he might
take such measures as seemed expedient. He acted on the authority; but,
he wrote, as he "[could] not say that the Enemy are approaching the Terri-
tory" how could he, under the instructions, take precautionary measures? —
Carter, Territorial Papers, 10: 474, 487.
33 Ibid. See Dr. Carter's note — Territorial Papers. 2: 629. No formal
action appears to have been taken.
cccxcvii
ILLINOIS HISTORICAL COLLECTIONS
St. Clair remained more than two months in the south, perform-
ing such official acts as were possible without seal and records, while
Sargent did the same in the north. The former then suggested that
the two should agree on how to treat "irregularities . . . [caused by]
the functions of chief magistrate having been performed by both at
the same time.""* He declined, however, to consult the general gov-
ernment regarding such collisions of authority, to avoid which nothing
more was required, he thought, than "a proper understanding" be-
tween the two officers. He did not see, he said, any other solution,
nor therefore how the government could suggest any other.33 In both
opinions he would seem to have been correct. Sargent — made sensi-
tive by foolish indictments brought against him under a territorial law
for another such "usurpation" in the past — did consult the Secretary
of State,30 but he received no answer.
St. Clair left the Territory while Sargent was still in "Wayne
County (Michigan). In effect, Sargent had been master and St. Clair
pupil in that episode. But he was an apt pupil, and the lesson he had
thus learned he practiced against Sargent's successor, Secretary
Byrd — taking with him the territorial seal when he left the Territory
("with a view," Byrd wrote, "to prevent me from appointing Re-
publicans to Office"), and withholding from him the territorial rec-
ords.37 That, to be sure, was in the last unhappy months of his ser-
vice.3'* Sargent's taking of the seal and records was entirely innocent.
-ilbid. 3: 460-.64; W. H. Smith, St. Clair Papers. 2: 414.
.3° W. H. Smith, ibid. 416. If there was no agreement Sargent could not
risk action as governor, hence there might be no executive head of the Terri-
tory for months at a time. If they should have agreed that Sargent act as
governor up to a fixed date, it seems probable that the result would have
been precisely the same, for St. Clair's affairs were so uncertain, travel so
precarious, and he was so often prostrated by gout, that arrival on a day
set would have been impossible. Even if arrival at Cincinnati or Marietta
had been the act agreed upon, warning of approximate arrival might not
have been received for weeks by Sargent, unless St. Clair had sent a special
messenger in advance.
■■<< See ibid. 415-16 and Carter, Territorial Papers. 3: 456.
■^ Ibid. 252; W. H. Smith, St. Clair Papers, 2: 339, 405, 415.
38 This discussion of statutory obscurities (or incompleteness) and ad-
ministrative perplexities will be clearer if the personalities of officials be
disregarded, notwithstanding that these aggravated all problems and were
the immediate cause of not a few. In every territory there were a few men
— sometimes very able, but of an intriguing or volatile or passionate and
domineering character — to whom must be attributed most of the prevalent
unrest.
cccxcviii
INTRODUCTION
and certainly as respects some records and the seal justifiable. But
St. Clair's action was political, and it occurred to some territorial
officials elsewhere to harass political opponents in the same manner.341
St. Clair did not return to the Territory until after Sargent had
left it as governor of the Mississippi Territory. During his absence,
when there was prospect of a necessity for exercise of his powers as
superintendent of Indian affairs, the thought that Sargent as acting
governor might also have succeeded to those other powers roused anew
his jealousy of encroachments upon his authority, and he consulted
the Secretary of State. The reply, expressing the tentative opinion
Governor St. Clair was by far the ablest official, in the writer's opinion,
of the Northwest Territory. Indeed, very few of all the officials in other early
territories (such as Augustus Woodward in Michigan and Harry Toulmin
in Mississippi) or in Washington approached him in ability. Relations be-
tween him and Secretary Sargent were for several years marked by sincere
mutual esteem; their later misunderstandings must seemingly be attributed
primarily to Sargent's exaggerated sensitiveness and lesser sense of humor —
though both men were prideful of authority. On the charges against the
Governor which led to his removal by Jefferson see R. C. Downes, "Thomas
Jefferson and the Removal of Governor St. Clair in 1802" (1927), Ohio Arch.
cC- Hist. Quarterly. 36: 62-77. Some of these charges will be referred to below
in discussing the powers of territorial governors. Neither singly nor in the
aggregate, even if proved, would the charges have justified — in the writer's
opinion — St. Clair's removal. Jefferson's decision, Gallatin's narrow and
bigoted partisanship (Downes, 69), and the petty manner in which Madison
carried out the President's decision all appear to have been, as William Henry
Smith said of the last (St. Clair Papers. 1: 246), "a striking illustration of
the political madness of the time."
:!f In the Mississippi Territory, Cato West (after being Governor Sargent's
most bitter enemy) was appointed to the secretaryship when a vacancy
occurred therein (Carter, Territorial Pajters, 1: 19, 2: 241); and having be-
come acting governor when Governor Claiborne was transferred to Orleans
Territory, was unwilling to resume his duties as secretary when Robert
Williams was named (ibid. 1: 18) as Claiborne's successor, but took the
territorial seal and records to his country home and refused to deliver them
or to act as secretary. The Governor took the oath of office (ibid. 5: 395 n. 2),
a month later he secured the seal (ibid. 409), three weeks later he "assumed"
office (ibid. 352 n. 1), but West still kept away with all the records (ibid.
415, 402, 404), and eventually returned them only under the compunction of
a statute (ibid. 576).
One of his successors, Cowles Mead, likewise withheld the records from
Governor Williams for two months and refused to show him letters written
to the Secretary of State and Secretary of War by Mead while acting gov-
ernor in the Governor's absence (ibid. 576).
In Orleans* Territory one of its secretaries, who served for nearly five
years, found it necessary to consult the Secretary of State as to his right
to see the territorial records in order to perform his duties under the Ordi-
nance (ante at notecall 14) ; Governor Claiborne having removed all except
"the Laws, and some of the proceedings of the Governor, such as his appoint-
ments"— ibid. 9: 962-63. Needless to say, this secretary was not reappointed
when his term expired four months later.
eccxcix
ILLINOIS HISTORICAL COLLECTIONS
that "the Secretary would doubtless be excused" for acting in those
affairs if required by the interests of the United States, was no doubt
another slight discomfiture.4" It was another point left open by early
legislation.41
Legislative Problems Arising from the Ordinance's
Omissions or Obscurities.
(1) The "Adoption" of Laws: Meaning of "Adoption."
Far greater than the above difficulties raised by the obscurities
of the Ordinance just discussed were those arising from its provi-
sion— quoting this as it appeared in the official congressional print
of that instrument, and as it was reproduced in volumes of the terri-
torial laws — that in the first stage of government "the governor and
judges, or a majority of them, shall adopt and publish in the district
such laws of the original states civil and criminal as may be neces-
sary and best suited to the circumstances of the district." However,
it also provided that "the laws to be adopted or made'' should have
force throughout the district.42 And after these words had already
caused great inconveniences, Congress added to them in an act of 1792
a provision for printing "the laws of the territory that have been or
hereafter may be enacted by the Governor and Judges thereof," and
another provision authorizing them "to repeal their laws by them
made.,,i?J
These passages all raise the question whether the old Congress in
1787 and the new Congress, in employing both the words "adopt" and
"make," used them unconsciously of any distinction between them,
or regarded them as having distinct meanings but authorized action
^ Ibid. 2: 629.
41 The Ordinance had no provision on the latter office, but the old Con-
gress by a later resolution of 1787 (Oct.) had united its duties to those of
the governorship. The Ordinance had required the secretary to remit periodi-
cally to Congress the proceedings of the governor "in his executive depart-
ment" (ibid. 2: 41), but the resolution of October had no such provision
as to Indian affairs. The question arose whether the governor was inde-
pendently or ex officio superintendent. Manifestly it was convenient, when
the governor was without the Territory, that the acting governor should
ex officio exercise the superintendency, and so it became established in the
Northwest Territory that such was true of the governor. See ibid 3: 386:
2: 629; 3: 24, 87.
Mlbid 2: 42, 44.
is Act of May 8, 1192— ibid. 396.
cccc
INTRODUCTION
in either manner. The doubts that arose from their obvious obscuri-
ties very greatly complicated the problem of legislation in the earliest
territories, gave rise to serious political controversies and unrest in
three, and cast grave doubts upon the legality of most of the statutes of
the first stage of government, particularly in the Northwest Territory.
Yet there would seem to be little basis in common sense for all these
doubts and controversies. If one assumes that enactment was subject
to a restriction that the substance of laws be copied from enactments
of the original states for political reasons — namely, to insure the domi-
nance in the territories of sound republican practices in government —
and concede legality to any statute, howsoever it be put together, so
long as it satisfies that objective, all difficulties disappear ; for nobody
(except doubtless some ill-informed citizens who were misled by
politicians44) ever dreamed that a failure to copy completely and
literally statutes that were "adopted" had endangered republicanism.
On the other hand, if one ignores the suggested (and indubitable)
motivation of the Ordinance's provision, and considers merely the
ordinary connotations of the words employed, there again seems to
be little difficulty. As very few officials ever referred, in arguing the
legality of "adopted" laws, to the political objective, but merely dis-
puted the meaning of the words "make" and "adopt," most of what
follows must be confined to a reflection of that narrow and sterile view.
Those words were never, in law, "words of art." Approval by
the governor and judges was all that was required for legislation
under government of the first stage. What they approved was law,
though Congress might annul it. Any bill formally approved by them
became thereby a statute, was their "act," and was enacted. Every
such statute was "made" law, as distinguished from customary law.
To legislate is always to "make" law. "The Existence of things
adopted," said Governor St. Clair, "is supposed in the very Term;
& by no Rule whatever, can the Act calling into Existence be made
convertible with Adoption. ' '45 As a matter of ordinary language this
44 For example, Robert McClure wrote from Cincinnati on Dec. 14, 1796
to Albert Gallatin: "Our situation is truly deplorable in consequence of our
Government & Laws. . . . our laws are mutilated and very dissimilar to
the original Codes from which they were adopted to the disadvantage of
the citizen" — New York Historical Society: Gallatin Papers (from transcript
in Nat. Arch.: State Dept., Miscellaneous Letters); italics added. There was
no basis for assuming such disadvantage.
45 Carter, Territorial Papers, 3 : 276.
cccci
ILLINOIS HISTORICAL COLLECTIONS
is, however, not literally true. For just as approval or adoption of a
motion to resolve leads us to speak of the resultant resolution as
"adopted," so when a bill is adopted and becomes a law it is common
usage to speak of the law as adopted. The second of the above quota-
tions from the Ordinance suggests (as the dictionaries show) that it
was likewise common usage in that day to speak of laws indifferently
as "made" or "adopted" — in either case, passed or enacted.
There was no need, then, as a matter of language, to read the
Ordinance as making a technical distinction between "make" and
"adopt." St. Clair gave the latter word a special meaning because
he had in mind, and greatly emphasized in his letters to the first
judges of the Territory, the Ordinance's political motivation.46 His
opinion is good evidence of that motivation. Assume that he was
correct; that Congress required the "adoption" of sound and tested
practices of republican government already embodied in the statutes
of the original states. Nevertheless, in denouncing through a period
of eleven years legislation in which he had joined, casting over all of
it a cloud of doubt, only in a veiy few instances is there discernible any
attention to the question whether there was in any of these laws a
line of matter that conflicted with republican practices. The real issue
was concealed under disputes over words.
In truth no one can say definitely whence the word "adopt"
came, by whom it was suggested, or with what intent. Jefferson's
ordinance of 1784 had proposed that settlers in the western country —
no matter how few in numbers — should be authorized to meet "for
the purpose of establishing a temporary government, to adopt the
constitution and laws of any one of the original states"47 Certainly,
as already emphasized, the spirit of this provision was admirably
liberal,48 but to its practicality Jefferson had obviously given little
thought. A formal adoption of the simplest existing constitution
would have fastened upon a few frontiersmen a frame of government
inconceivably beyond their capacity to support. To have adopted
in the mass "the laws" of any state would have been an even more
patent absurdity — as Judge David Campbell of the Southwest Terri-
tory pointed out in interpreting the loose compact between North
•to Ibid. 273-78.
4? Journals of the Continental Congress. 171 '$-1789, 26: 276, 256.
48 Ante ccliv.
ccccii
INTRODUCTION
Carolina and the Union "that the laws in force and use in the State
of North Carolina" should "be and. continue in full force within
the territory . . . ceded until repealed, or otherwise altered by the
Legislative authority of the said territory."40 The settlers of Frank-
lin and Watauga had no such absurdity in mind when they informally
elected to live under the laws of Virginia and North Carolina. If
they lived under such at all, it was only under selected laws modified
to suit their circumstances,''0 and that is the way the Watauga in-
habitants later lived under the Ordinance and North Carolina laws
in the Southwest Territory.51 In effect that is what Anglo-Americans
have done in scores of cases in different quarters of the earth, making
or forming their laws from models before them, or earlier lived
under and more or less definitely remembered.52 It was precisely
what the settlers at Marietta did for four months, what those in the
Ohio bottoms farther northeast did, what was done for years by the
settlers of the Western Reserve.53 Jefferson knew well the attitudes
of the frontiersmen ; his policy was to treat them fairly in order to
save the Union ; some of the southwestern state makers acted under
the provision of his ordinance. In employing the word "adopt," he
had in mind merely the regularization of frontier practices and an
assumption of national control over them.54
In Monroe 's first draft of a governmental plan to supplant Jeffer-
son's, it was provided that "the laws of , " except as otherwise
provided, should have force in the Territory, subject to alteration by
its legislature in the second stage of government.55 This provision had
every disadvantage of Jefferson's; with the additional disadvantage
from the writer's viewpoint- — but merit from Monroe's — of leaving
no choice to the inhabitants. No doubt the disadvantages became
clear, for in Monroe's second report no provision whatever on the
subject was ventured.56 In the report made immediately after Mon-
roe's retirement (with Dr. William Johnson as chairman and Nathan
49 "It would be preposterous to say the Laws of North Carolina are to
be adopted in Toto" — letter of Feb. 25, 1792 to Secretary of State, Carter,
Territorial Papers, 4 : 124.
so Ante at notecalls 264, 284 of Sec. IV.
5i Post ccccxxix-xxx.
32 Ante n. 281 of Sec. IV.
ss Ante cccxlvi, cccxlix.
5i Ante cccxlix.
55 Report of May 10, 1786— Jour. Cont. Cong. 30: 258.
56 Same of July 13— ibid. 402-6.
cccciii
ILLINOIS HISTORICAL COLLECTIONS
Dane a member — and the change presumably clue to the good sense
of one) it was provided that the territorial judges should select as the
Territory's criminal laws those of some one state, "in their opinion
the most perfect," which should prevail unless altered by the terri-
torial legislature, after its organization.57 In a subsequent debate
this wholly acceptable provision was replaced by that which appears
in the Ordinance as finally passed, and which is quoted above.58
It seems reasonably clear that Jefferson, wishing merely to favor
the frontiersmen by sanctioning their instinctive desire to live under
the laws of the state in which a majority had earlier resided (which
has always remained American practice59), made no technical distinc-
tion between making and adopting laws but used the latter word
merely to emphasize the freedom allowed in selecting a statutory
model. On the other hand, of the three substitutes above stated it
seems reasonably clear that both Monroe's original provision and the
one finally embodied in the Ordinance had for their purpose the estab-
lishment of sound political principles in the western country. The
additional provisions giving an absolute veto over all territorial legis-
lation to a governor appointed by the general government,00 and
giving a secondary power of disallowance to that government, as in the
British colonial system, clearly indicated that its framers were domi-
nated by that purpose. It has earlier been noted that virtually all
our colonial charters sought to preserve political purity by forbidding
legislation inconsistent with English law.61 The Ordinance's purpose
•-•"Same of Sept. 19, 1786— ibid. 31: 670.
r>8 At notecall 42. The draft last cited was debated on Sept. 21, 1786, and
on April 26, May 9, and July 9, 1787— see ibid. 32: 275 n. 2. The report
as printed ibid. 32: 281-83 shows how the draft stood after the debate on
May 9 and after that on July 9 ; and the alteration to the form of the Ordi-
nance as finally passed was made before May 10 — ibid. 281. Evidently on
the basis of evidence not available in the Jour. Cont. Cong, as printed, but
referred to in ibid. 32: 242 n. 2, Dr. Carter states that the change was made
in the debate of April 26 — Territorial Papers. 2: 43 n. 15.
See ante xxxix at notecall 92.
59 Ante n. 284 of Sec. IV.
so See post, ccccl seq.
6i Ante ccclvii-viii. Governor Winthrop admitted that there was cause for
fear as respected Massachusetts Bay, pointing out that the magistrates were
loath, for two reasons to pass laws. First (though he put it second), be-
cause the growth of law by custom would not violate the charter prohibition:
second, because "want of sufficient experience of the nature and disposition
of the people, considered with the condition of the country and other cir-
cumstances, . . . made them conceive, that such laws would be fittest for
us, which should arise pro re nata [rei natural upon occasions," as the
cccciv
INTRODUCTION
was the same, as no doubt was generally recognized at the time.62
At first blush there is something extremely attractive in the idea
of selecting from the statute books of all the states the laws best
adapted to the needs of a new territory. To a man of culture and
idealism such as Harry Toulmin the appeal was very great.63 Gov-
ernor St. Clair, too, saw advantages arising from the intermixture
of laws from different states — and therefore best to be chosen, he
English common (customary) law had done — History of New England
(Savage, ed. 1853), 1: *323.
fi2 It was, for example, recognized by Governor St. Clair and his first
fellow legislators, Judges Parsons and Varnum. In order properly to pre-
pare the Territory for admission to the Union, the Constitution requiring
it then to be republican, the Ordinance's intent, said the judges, was "to
prevent the adoption of laws that might support the principles of a mon-
archy." The proviso to which their legislation was subject, they therefore
concluded, was this: "that such laws be not repugnant, but as conformable
as may be to those of the original states, or of some one or more of them" —
letter of July 31, 1788 to St. Clair in W. H. Smith, St. Clair Papers, 2: 70.
Governor St. Clair's comment on these remarks was, that "to prevent the
Introduction of Laws that might not be 'conformable to the Constitution of
the United States; or inconsistent with Republican Principles; or that
might support the Principles of a Monarchy', they would not suffer us to
make new ones" — letter of Aug. 2, 1788 to the judges, in Carter, Territorial
Papers. 3: 276.
In all the controversy over the adoption requirement an exaggerated
importance was attributed to it. The Ordinance did not require the adop-
tion of post-Revolutionary laws, only, of the original states; it did not, be-
cause of its reference to "laws," bar ante-Revolutionary laws on an assump-
tion that all others were repealed by the mere success of the Revolution, for
of course they were not. Monarchical principles in them were devitalized,
politically speaking, but repeal came from constitutional changes and legis-
lation inconsistent with the old laws; for example the law of 1776 adopting
English law as of a certain date would have been a very desirable law for
adoption had it not been specifically repealed before the legislators of the
Northwest Territory adopted it — post n. 77.
One must either attribute to the Ordinance an intent that the legislators
should adopt laws of the original states with an adjustment to republican
institutions such as was from the beginning made, or impose upon its words
other interpretations less consistent with those words and less consistent with
what was actually done in the various territories. But the final and complete
protection of the Union lay in the power of Congress to invalidate territorial
laws.
63 In a letter of Dec. 9, 1803 he wrote from Frankfort (Ky.) that he
would prefer a judicial appointment "on account of its permanency: &
possibly as the legislative power is lodged with the judges; there will be
enough to do: at [any] rate there ought to be: for I have often thought, —
that through the intelligence & activity of our territorial judiciaries, — a
more regular & complete system of laws might be produced, than can rea-
sonably be expected with that mode of legislation which prevails in states
arrived at maturity. Let me be indulged if I solicit you to make some provi-
sion in congress for furnishing the Judges of the territory with the Laws
of the several states" — Nat. Arch.: State Dept, Appointment Papers, Mis-
cellaneous.
ccccv
ILLINOIS HISTORICAL COLLECTIONS
thought, by judges from different sections.04 But the practical diffi-
culties impeding even any moderately satisfactory solution of the
problem immediate^ appeared. These impediments were wholly
independent of the ability of the judges. That, though seemingly not
exceptional, was sufficient for the task.
In the first place there was no adequate collection of state statutes
available. Governor St. Clair tells us that neither of the judges of
the original General Court took such a collection to the Territory, not-
withstanding that each, in advance of beginning service, had received
a quarter-year's salary to compensate him for the trouble and cost
of procuring one.65 Seven years later the laws of at least four other-
states seem to have been available to the legislators in Cincinnati.0'5
No doubt the difficulty recurred iu each new territory.67 Xo doubt,
too, instead of depending upon personal collections that had no as-
sured permanency, it would have been better if Congress had estab-
lished in each territory a permanent collection for successive judges.
''<* Carter, Territorial Papers, 2: 206.
65 W. H. Smith, St. Clair Papers, 2 : 334. The Governor was also a legis-
lator, but whether he had received an advance on salary for the purpose in
question does not appear. Secretary Sargent had procured in Boston "copies
of Civil and Military Commissions, Passports, &c, &c, &c." — Carter, Terri-
torial Papers, 2: 91. These (with modifications which were subject to no
restrictions, though they must have conformed to changes in the laws) no
doubt vastly facilitated the establishment of legal practices in the Territory.
?6 Massachusetts, Virginia, New York, and New Jersey. The number of
laws taken from these states and Pennsylvania is given by Mr. Pease —
T. C. Pease, Laws of the Northwest Territory (I.H.C. 17), xxvi.
The legislative journal of the 1795 session is in the 07iio Arch, & Hist.
Publications. 30: 19-53. Thirty-seven enactments, including one repealing
act, appear as approved in the journal, and all were printed in "the Maxwell
Code." Two of these (one on petit larceny, p. 35; one on forcible entry and
detainer, p. 43) were mistakenly omitted in the numbered list at the end
of the journal (35 laws only).
''" For example, two years after Secretary Sargent became governor of
Mississippi Territory he informed his fellow legislators of certain volumes
of laws received since their last session — D. Rowland, Miss. Territorial Arch..
1: 231. In 1818 the secretary of Michigan Territory suggested to the Secre-
tary of State the desirability of supplying his office "with entire sets of the
Legislative Acts of the original States . . . there is not in the office the code
of any one State" — Carter, Territorial Papers, 10: 713. Presumably some
of the judges, and one would suppose at least Judge Woodward, had private
collections; but among the reasons why he failed of reappointment in 1824
was a charge of "not having any book of law of [his] own nor ever reading-
books on law, but only books on science" — ibid. 11: 537. But see Mr. Blume's
tribute to him — W. W. Blume, ed., Transactions of the Supreme Court of
the Territory of Michigan, 1805-1886 (6 vol. 1935-1940), 1: liv. See Phil-
brick, Laivs of Indiana Territory (I.H.C. 21), cxiv n. 3, for other references
to the subject.
ccccvi
INTRODUCTION
Legislation for that purpose came only later08 and was seemingly very
rare; however, as time passed law books must have become locally
available.
An even greater difficulty was to find laws that were in the least
suited to the simple conditions of the early territories. An excellent
authority estimated that in the whole of what is now Ohio there
were in 1793 about 3,000 souls,60 distributed in eleven localities, with
only two settlements larger than small villages. Far west of them
were the settlements around Vincennes and in the Illinois Country,
and far north those about Detroit. These little isolated settlements
were very primitive. If laws were to be chosen to "suit their circum-
stances"— -and there was always much talk of that, — it might seem
that laws of the early colonies would have been better than contempo-
rary laws of the states, as Judges Parsons and Varnum suggested70
and Governor St. Clair agreed.71 It would seem a better view, how-
ever, that they needed laws adjusted in content to the social circum-
stances of their time, and that only in a simplicity of their judicial
system and a celerity and inexpensiveness of procedure was any ad-
justment needed to geographical and economic conditions. 7-
os The act creating Wisconsin Territory appropriated $5000 for the Gen-
eral Assembly and Supreme Court — April 20, 1836, sec. 17, U. S. Stat, at
Large, 1: 16. On Jan. 11, 1839 a committee of the House of Representatives
recommended an appropriation for the Legislative Council and Court of
Appeals of Florida Territory (seemingly one of $5000) and said of the Wis-
consin appropriation: "This is the only instance known to the Committee
in which Congress has extended a like munificence to Territories, but one
that may justly be regarded in future applications as possessing the char-
acter of precedent" — 25 Cong. 3 Sess. H. Rep 159.
69 See Carter, Territorial Papers, 2: 470 and index s.v. "Heckewelder,
John."
70 "Perhaps in their infancy their laws might have been suited to our
situation, making allowance, however" — which is just what could not be
done in adopting them literally — "for the progress of civil society; but the
original States have revised their laws, and conformed their present codes
to their situation"— letter of July 31, 1788 to St. Clair, W. H. Smith, St.
Clair Papers, 2: 69.
7i Carter, Territorial Papers, 2 : 207. His reason for only an infrequent
use of them, which his statement implies, was "their having been generally
repealed as the State of Society had changed," but compare the next note.
72 Governor St. Clair, who wavered considerably over the difficulties of
the adoption problem (post n. 107), sometimes argued this way — ibid. 275.
The age of statutes would be vastly more important in some fields of law
than in others. Mr. Pease remarked: "Sometimes their legislation was
antiquated. Certain Pennsylvania laws adopted in 1795 had been on the
statute book of the colony for almost a century" — Laws of the Northioest
Territory (I.H.C. 17), xxxi; but this criticism would not, I think, justly
apply to the Pennsylvania statute cited ante n. 37 of Section I. Moreover,
ccccvii
ILLINOIS HISTORICAL COLLECTIONS
Which were the "original" states? In Indiana and Illinois
territories laws of Kentucky were freely adopted, without attention
to theory; but the judges of Michigan Territory supported the same
practice there by the theory (which, though doubtless not the in-
tended meaning, was an excellent basis for a preferable working
principle) that all states were original with respect to Michigan Terri-
tory which were created before 1805 and represented in the Congress
that passed the act which that year created that Territory, since
that act alone, giving to the Territory a government "similar" to that
of the Ordinance, gave any force to the Ordinance in Michigan.73
Under this theory the corresponding dates of 1800 and 1809 would
apply to Indiana and Illinois territories, respectively, and justify
the actions of their legislators.
It was agreed by everybody, in every territory, that a literal ap-
plication of the adoption theory — that is, a transplanting of any stat-
ute literatim et verbatim into a territory — was impossible, even as
respected laws of a general character.74 For in adopting those it was
necessary to alter all references to the enacting power, all dates, all
as respected just relations with the Indians, no better models could be found
than very early colonial statutes of Pennsylvania, although as Governor
St. Clair remarked those statutes "from a change in circumstances" had
there gone into disuse — -W. H. Smith, St. Clair Papers, 2: 74; Carter, Terri-
torial Papers, 3: 275.
Among the laws collected in Mississippi Territory referred to ante
n. 67, were "a volume from Connecticut and [one from] Virginia, but
[each ?1 of very old date." Governor Sargent, after hastily examining all
the volumes, could not recommend any particular statute in any of them —
Rowland, as there cited.
7s Mich. Pioneer and Hist. Soc. Collections, 8: 603-4, report by Judges
Woodward and Bates in 1805; ibid. 31: 362-63, letter of Judge Woodward to
Secretary of State in 1806; Philbrick, Laics of Indiana Territory (I.H.C.
21), cix-cx. On practices in Indiana and Illinois territories see post n. 112.
74 Judges Parsons and Varnum — W. H. Smith, St. Clair Papers, 2: 69;
Judges Symmes and Turner — ibid. 365; Governor St. Clair to the Attorney
General — Carter, Territorial Papers, 2: 319, in which he wrote: "it is cer-
tain that, from the peculiar Circumstances of the Country, in many Cases,
no Laws of the original States would be found to apply to their Occasions
exactly without alterations, and, if they were altered to those Occasions, they
would cease, it would seem, to be the same Laws." They also recognized
the propriety, of course, of adopting entire laws, and St. Clair referred to
that as "the genuine" meaning of the Ordinance's clause — ibid. 3: 276.
The judges seemingly started with some vague idea that the Ordinance
could be satisfied by attention to general principles only, disregarding (or
omitting?) "the particulars"— W. H. Smith, St. Clair Papers, 2: 69: St.
Clair's reply, ibid. 73, or Carter, op. cit. 3: 273.
See the letter of Judge Woodward quoted in Philbrick. Laics of Indiana
Territory (I.H.C. 21), cvii.
ccccviii
INTRODUCTION
geographical names, and most descriptions of governmental depart-
ments and officers, in addition to the obsolete or obsolescent units of
measure and money, the penalties, and the references to British
supremacy that abounded in the statutory compilations with which
the legislators worked. Even as to legislation of a general nature,
therefore, it was essential, if any legislation was to be accomplished,
to agree upon the limits within which alterations were permissible of
a statute professedly adopted. In all territories it was regarded as
proper to omit portions of a statute ;73 and when any reason was re-
corded for this decision a reference was made to the discretion allowed
the legislators by the Ordinance's provision empowering them to
adopt "such laws ... as may be necessary."70 Still, was the residuum
thus adopted ever a "law"? What if only one sentence of one
section be adopted from a statute of seventy-six sections?77 "Why not
'5 So declared by Judges Parsons and Varnum — -W. H. Smith, St. Clair
Papers, 2: 70; acquiesced in by Governor St. Clair — Carter, Territorial
Papers, 3: 272; "Under the term laws, all parts of laws have been deemed to
be included. Hence it has not been thought necessary to adopt the whole of
a law from one State" — Judge Woodward stating in 1806 to the Secretary of
State the Michigan practice — Mich. Pioneer and Hist. Soc. Collections, 31:
562. Governor Edwards of Illinois Territory ended an address to the Gen-
eral Assembly on construction of the Ordinance with an argument based on
this earlier practice in the first stage of government: "the power to adopt
laws from any of the States, and not from particular ones only, presupposes
the authority of the Legislature to alter them as they shall think fit" — N.
W. Edwards, History of Illinois from 1778-1833; and Life and Times of
Ninian Edwards (1870), 91. Compare post ccccxix-xx. The practice of Gov-
ernor Sargent in Mississippi Territory conformed to his practice as acting gov-
ernor in the Northwest Territory, and was latitudinarian — see post ccccxxiii-iv,
ccccxxvi-vii. So was the practice in Indiana Territory — post ccccxix.
7s "We may admit such parts of any particular law as will be necessary,
etc." — Judges Parsons and Varnum, W. H. Smith, St. Clair Papers, 2: 70.
"The discretion vested under the term necessary has been construed to
impart the power of omitting any part of a law whatever' — Judge Woodward,
Mich. Pioneer and Hist. Soc. Collections, 31: 563.
" Mr. Pease gives this example from the 1795 "adoptions" in the North-
west Territory — Laws of the Northwest Territory (I.H.C. 17), xxix. Another
most extraordinary case in that Territory probably did not arise elsewhere.
The Ordinance did not say that adoptions were to be of laws "in force" in the
original states, although Judge Burnet assumed that reading in his remarks
on the adoption problem — Jacob Burnet, Notes on the Early Settlement of
the North-Western Territory (1847), 63. Moreover, Governor St. Clair re-
garded as impossible the adoption of colonial laws that had been repealed
"as the State of Society had changed"; nevertheless he thought such early
laws prima facie suitable to the Territory, and various were adopted, not-
withstanding that they had fallen into desuetude — ante nn. 65, 66. It hap-
pened that a very important enactment of 1795, declaring what constituted
the basic law of the Territory, was adopted from a Virginia colonial law
of 1776, which had been repealed in 1792. The effectiveness of the adoption
ccccix
ILLINOIS HISTORICAL COLLECTIONS
severable, as a law, if originally a distinct rule — regardless of others
then joined with it? All parts were law.
If that difficulty could be ignored — as it was — why not combine
in one territorial law parts of different laws? — and even of different
states? The first judges thought all this quite proper — "And if this
be granted, surely the diction ought to be rendered uniform."78 In
Michigan it was deemed entirely "sufficient that all the parts of any
law are sanctioned by the provisions of some of the States."79 Cer-
tainly such procedure would not endanger the republican purity of
the territories, and probably all authorities would have agreed with
the first judges of the Northwest Territory that the Ordinance should
be given a "liberal" construction, consistently with promoting that
Terrritory's well-being and preserving it "in a due Dependence
upon the general Government." But Governor St. Clair, if laws of
different states were adopted (and then only), could not "discover
the least Difference between this, & legislating originally " ; th is was
"making" a law.80 Still, the Ordinance read "laws . . .of the origi-
nal states" ; it did not explicitly require the adoption of them singly —
still subject to the question whether part of any statute could be a law
the adoption of which, as such, was permissible.
No matter what theories might be correct, the fact is that St. Clair
joined the judges in all of the above practices. He later stated, when
Attornej7 General Randolph questioned the validity of the laws of
of the English common law as the basic law of the Territory was there-
fore legally doubtful for two reasons: one, that it purported to adopt, not a
single law, but a great body of unenacted law and a great mass of statutes
enacted up to a given date; the other, that the single Virginia law, by adop-
tion of which the adoption of the English legal system was supposedly
effected, was itself not an actual law in 1795. Tested by the postulated
objectives of the adoption requirement either repealed or disused statutes
were unobjectionable. Nor was there any sensible distinction between these
cases and that of a mere fragment of an effective law.
Salmon P. Chase regarded the Virginia enactment as "not either at the
time of its first enactment, nor at the time of its adoption ... a law of
an original state'' in the sense intended by the Ordinance — Statutes of Ohio
and of the Northivestern Territory . . . from 17SS to 1S3S (1833), 190 n.
But this emphasis upon state seems unreasonable; compare W. H. Smith,
St. Clair Papers, 2: 70-71, 76. The question was once legally passed upon,
but the court was equally divided on the issue whether the English law
had been made law in the Territory — Philbrick, Laws of Indiana Territory
(I.H.C. 21), cii n. 1.
"8W. H. Smith, St. Clair Papers, 2: 70.
Tn Judge Woodward, Mich. Pioneer and Hist. Soc. Collections, 31: 562.
so Carter, Territorial Papers, 3: 275, 276.
ceccx
INTRODUCTION
1788, that he "gave way to the Opinion of the Judges, and to the
necessity of the ease.!'81 In a degree this statement, and its essential
repetition in 1795 (to new judges, after the death of Parsons and
Varnum), is entirely true. But it would be more acceptable to his
admirers if in his letters to the judges he had yielded acquiescence sole-
ly on the grounds stated to the Attorney General. In fact, however,
the personal opinions stated in those letters committed him to positive
approval of everything done except the joinder in one law of laws
adopted from different states. Other points, conceded, could have
been contested reasonably ; the final position where he refused out-
right approval was indefensible. His fellow legislators positively re-
fused to put their action on the ground of necessity.82 Strangely
enough, they did not in their letters even refer to the ambiguous
wording of the Ordinance itself, already quoted.83
The practice followed in 1788 was not altered in the scanty legis-
lation of 1790 and 1791. Si In 1792, when Secretary Sargent was act-
si Letter to the Attorney General, 1790 — ibid. 2: 319 (probably in July —
compare ibid. 648 and W. H. Smith, St. Clair Papers. 2: 181). About a year
earlier he had stated the matter more fairly to the President: "it became
necessary that Laws, corresponding as nearly as possible to those of the
original States, should be formed — their first formation was thought to be
within the Province of the Judges in their legislative Capacity, the Governor
reserving to himself the right to suggest such Alterations & Amendments
as he should think necessary, either for the good of the People or the In-
terest of the united States, and finally to approve or reject them. The laws
that have been published have been framed in that manner" — Carter, Terri-
torial Papers. 2: 207.
«2 W. H. Smith, St. Clair Papers, 2: 70.
ss In Governor St. Clair's letter to Attorney General Randolph, ante n.
76, he emphasized this argument and attributed it to the judges. If he
pleaded persuasion by the judges it was essential to attribute to them some
arguments of force, and this particular argument had strength. If the judges
urged it at all, it is strange that it was not urged in their letters.
s* See T. C. Pease, Laws of the Northwest Territory (I.H.C. 17), xxiv.
The first of the two sessions of 1790 was at Vincennes; a longer session was
desirable; but Sargent would not stay there for a longer session, nor stay at
Clarksville (Louisville) or Ft. Steuben for one; and Judge Symmes left
the Territory in disregard of Sargent's call for a session at the eastern end
of the Territory— see Carter, Territorial Papers, 2: 300, 302-4, 3: 317, 329,
330, 399-400. Another illustration of the difficulty of getting the legislators
together is afforded by the antecedents of the session of 1795. St. Clair's
proclamation of July 25, 1793 called for a session on Sept. 1. It was more
than once postponed — in Sept. 1794 because of the Governor's illness, and
later that year and winter because the judges were too far away (W. H.
Smith, St. Clair Papers, 2: 356, 332). On May 29, 1795 they finally met at
Cincinnati, Judge Turner coming from the Illinois Country, and Judge
Symmes (who had gone up the Ohio to Marietta at St. Clair's call, only to
find him not there — Symmes to St. Clair from Marietta, ibid. 339, and to Jona.
ccccxi
ILLINOIS HISTORICAL COLLECTIONS
ing governor, he and two new territorial judges made a considerable
addition to the laws and concurred in adopting views of their powers
which were contrary to those of Governor St. Clair. Long afterward,
just before receiving official notice of his elevation to the governorship
of Mississippi Territory, he put upon the executive journal of the
Northwest Territory a record that "the Volume passed in 1792 . . .
proclaimed [his] Belief" that by the Ordinance the governor and
judges had been "fully authorized to make laws as well as to adopt
them."85
In 1792, by a law already mentioned, Congress gave the governor
and judges power to repeal laws "by them made," and disapproved
one particular law of 1788.86 The first of these provisions cured an
Dayton, June 17, 1795 in Ohio Arch. & Hist. Publications. 30: 15) from his
home in the Miami Purchase.
Such difficulties were common in the early territories. Governor Wilkin-
son reported to the Secretary of State that he had postponed calling the first
session of the Louisiana-Missouri Territory "until the heats and animosities
between the Judges and the grand Jury have subsided" — really between
the judges and Wilkinson, who was supposed to have made the grand jury
his tool — Carter, Territorial Papers, 13: 254. Seven weeks later he reported
that Rufus Easton, "With one Indictment found against Him, & two or three
hanging over him, . . . instead of meeting the Legislature . . . has this
day abandoned the Territory & set out for . . . Washington to meet his
Enemies" — letter of Dec. 31, 1805, ibid. 370.
83 Address to the judges (Symmes, Gilman, and Meigs, of whom the first
had collaborated in the legislation of 1792), April 14, 1798 — Carter, Terri-
torial Papers. 3: 503. St. Clair had been absent from the Territory nearly
two full years — ibid. 2: 648; Sargent was about to leave it, before the Gov-
ernor's return; this journal entry was a last assertion of the independence
which, as against the Governor, it had been so difficult to maintain. His
additional remark, "I have not since had reason to change them," was in-
tended to disparage the action of the House of Representatives in 1795 and
the many contrary arguments of St. Clair.
^ Ibid. 2: 396. The law disallowed was one of limitations — T. C. Pease,
Laws of the Northioest Territory (I.H.C. 17), 25-26. As respects repeals,
no law of an original state could have afforded for adoption more than these
words, or their equivalents: "The Law of (state's name) dated ■
and entitled is hereby repealed." The federal statute was clearly not
intended to relieve embarrassment on that account; if such had been its
purpose Congress must, logically, have disallowed various laws such as the
one cited at notecall 77, ante. The real reason for the law was the Ordi-
nance's provision that laws adopted for the Territory should "be in force
until the organization of the general assembly therein, unless disapproved
of by Congress." And a statute giving the power was necessary because,
although a power of repeal would have been impliable from a general power
of legislation it could not be implied from a power to legislate in a special
manner only. (The point was too broadly stated in the reply of the Cato
West group to Governor Sargent and the judges of Mississippi Territory —
ibid. 5: 88.) The draftsmen of the Ordinance must either have deemed
specification of the poAver unnecessary or they overlooked the problem.
ccccxii
INTRODUCTION
important defect in the Ordinance. The second carried an implication
that the other enactments were not invalid for lack of proper "adop-
tion." This implication was consistent with the indifferent use by
Congress, in this statute, of the words "make" and "adopt." Three
years later the House of Representatives passed a joint resolution
which disapproved all the laws passed in 1792 with one exception (a
repealing- act).87 The Senate, however, refused to concur.88 Although
those laws had unquestionably been passed under an assumption by
the legislators that laws might be either "adopted or made," as the
act of Congress earlier that year had said,89 there was no essential
difference between them and most of the earlier laws of the Territory.
Had the resolution passed, said Governor St. Clair, "though the laws
enacted within the period referred to might have been the special
object, the principle would have reached to every law existing in the
Territory";90 which was not strictly accurate, but true to a degree
*<■ As recommended by a report of a House committee (May 24, 1794)
printed in American State Papers, Miscellaneous. 1: 82. The essential
proceedings of the House are in Annals, 3 Cong. 2 Sess. 1214, 1223, 1227
(joint resolution approved Feb. 16, 1795). It is difficult today to understand
what it was which made the laws of 1792 seem particularly evil. There is,
for example, an interesting letter from Griffith Green to Sargent. Green was
a justice of the peace and a licensing commissioner. He impresses one as
an honest man. He protested against "some of the Laws" — presumably,
in particular, the law of Aug. 1, 1792 for licensing merchants, traders, and
tavern keepers, T. C. Pease, Laws of the Northwest Territory (I.H.C. 17),
'61 — as "not founded on the Bases, of sound policy, and . . . oppressive."
He added: "The Law, I adhear to— Hoping the time will come when the
interest of the commonalty shall be the first objeqt, and this I doubt not
will take place when the United States, in Congress assembled have leasure
to attend to the Laws adopted by the Legislative of the Territory." He
resigned his office because the laws were not "as wisely framed to the cir-
cumstances of the governed" as those St. Clair concurred in adopting — letter of
Nov. 25, 1792, Massachusetts Historical Society: Sargent Papers (copy exam-
ined in State Dept.).
s8 Ibid. 825, 830. Judge Symmes, writing when he supposed annulment
to have been effective, made some sensible remarks: "How far the safety
and happiness of the United States were involved in the downfall of our
little code of jurisprudence, affecting few more citizens and scarcely more
energetic than the laws of some country corporation, especially as they had
been undoubtedly been [sic] twice read, and ordered by Government to be
printed, I will not pretend to conjecture. . . . We lived tolerably happy under
them, & if I am not mistaken, the happiness of the people is the object of all
laws" — June 17, 1795 to Jona. Dayton, B. W. Bond, Jr., ed., The Correspondence
of John Cleves Symmes (1926), 171. On July 14 Symmes joined with Governor
St. Clair and Judge Turner in the territorial act of 1795 by which most of
the legislation of 1792 was repealed — T. C. Pease, Laws of the Northwest
Territory (I.H.C. 17), 256-57.
ss Ante at notecall 42.
'■>oW. H. Smith, St. Clair Papers, 2: 356.
ccccxiii
ILLINOIS HISTORICAL COLLECTIONS
that would have left little in the statute book.'11 St. Clair also told
the territorial judges that "if [he was] rightly informed," the
Senate's nonconcurrence with the House was due only to the fact
that "as they considered [the laws] all . . . void, they thought it im-
proper to declare any of them so by an act of the legislature." There
is no apparent justification for attributing to the Senate such shallow
and irresponsible reasoning. Its action can be fairly interpreted only
as tantamount to a judgment that the territorial laws, if not "adopt-
ed," were not therefore necessarily void.92
The territorial legislature, which Governor St. Clair had for two
years been attempting to bring together,"3 convened shortly after the
above action of the Senate. In addition to laws supposedly invalid
for lack of proper "adoption" there were undoubtely, both in the
Northwest and other territories, some which were void because the
legislators lacked power over the subject matter, or because they con-
flicted with the Constitution or with treaties or with federal statutes.-'4
si Salmon P. Chase stated that, "Before the year 1795, no laws were,
strictly speaking, adopted" — Statutes of Ohio. 25. This was true if one
means adopted without change of place or personal names, official titles,
dates, etc. Sensibly interpreted, it was not true.
One wonders who was primarily responsible for the congressional attempt
to invalidate the territorial laws. The writer is inclined to suspect Edmund
Randolph, who had shared St. Clair's views since at least 1790, when attor-
ney general, and in 1795. as secretary of state, forwarded the 1792 laws to
the President with a reference to disallowance — Carter, Territorial Papers.
2: 319, 472.
St. Clair was in Washington most of 1792 and half of 1793, and no doubt
spread his opinions in official circles.
"2W. H. Smith, St. Clair Paiiers, 2: 356-57. An attribution to the
Senate of an opinion either (1) that Congress, considered alone, should not
act, or (2) that Congress, considering the nature of the issue, should leave
it to the courts, would seem equally impossible. The latter, indeed, is an
absurdity, for the Senate knew that no appeal lay from the General Court
of the Territory and that the territorial judges would not pronounce their
own acts as legislators void. As for the first suggestion, the Ordinance
gave force to any "adopted" law unless Congress disapproved. It was
therefore a positive duty to disapprove an undesirable law, to save the people
from relying upon it. For the same reason it was a positive duty to dis-
approve any supposed law of whose nullity Congress was convinced, and there
was no court to which the duty could be left or with which it could be
shared. It seems quite reasonable to assume that the Senate acted upon
those principles, and therefore one cannot accept St. Clair's interpretation
of the Senate's action. On the contrary — in view of the ambiguous employ-
ment of the words "adopt" and "make" in the Ordinance and the congres-
sional act of 1792 — it seems wholly reasonable to reach the conclusion stated
in the text.
*J3 Ante n. 84.
84 Notable were laws against treason in the Northwest, Mississippi, Michi-
ccccxiv
INTRODUCTION
St. Clair undertook, seemingly, to purge the statute book of laws
invalid, in his opinion, for any reason. In an address to his two judi-
cial colleagues (both of whom had joined Secretary Sargent, acting
governor, in enacting the laws of 1792) he quoted his various criticisms
since 1788 of all that he had joined in doing, assured the judges that
he had always expected the territorial laws to be annulled if Congress
should test their conformity to the Ordinance, and advised "an im-
mediate repeal of all the laws of the Territory, and that laws of some
or all of the original States be adopted and published in their stead."
But if the judges disagreed, he said, he would point out "several
laws which . . . should be repealed at all events."""' That is, he was
still putting himself on the record as for one action, but offering for
the sake of harmony to join in other and inconsistent action. His
record for eleven years in this respect did him no credit. The judges.
gan, Indiana, and perhaps other territories. Legally speaking, there can
be no treason against a colony, because it is not a sovereign state, nor did
the territorial legislatures have power to legislate against treason to the
Union or to the several states, as John Jay tactfully made known to Gover-
nor St. Clair in 1789 (Carter, Territorial Papers. 2: 166, 188), and Judge
Woodward, though of course not tactfully, to Governor Hull in 1810 {ibid.
10: 324). The imposition of cruel and unusual punishments upon convicted
traitors, in violation of the sjyirit of the Constitution (not its letter, for the
territories were not covered by its prohibition), was only an additional
objection, although Governor Sargent mistakenly supposed that its removal
would cure the defects of the Mississippi statute — D. Rowland, Miss. Terri-
torial Arch., 1: 230 (Mr. Rowland sharing Sargent's mistake). Cato West
and his fellow opponents of Sargent corrected him on this point — Carter,
Territorial Papers, 5: 87. The law of the Northwest Territory is in T. C.
Pease, Laics of the Northwest Territory (I.H.C. 17), 13, 322, and index s.i;.
"Crimes"; the Indiana law of 1807 is in Philbrick, Laws of Indiana Territory
(I.H.C. 21), 235, compare 427.
Other notable statutes ultra vires because falling within the field of
Indian affairs, which were a matter of national and not territorial regulation
(and which also, possibly, conflicted with a treaty — Pease, op. cit. xxv n. 3),
were those regulating Indian trade or taxing Indian traders. See ibid.
26. Judge Turner, in the legislative session of 1795, moved the repeal of
the act; see W. H. Smith, St. Clair Papers, 2: 354 and Carter, Territorial
Papers, 2: 510," 514, 518. On taxation of Indian traders: L. Bsarey, ed.,
Messages and Letters of William Henry Harrison, 1800-1816 (Indiana His-
torical Society Collections, 7, 9), 1: 88; House report of Jan. 10, 1804 in
Carter, op. cit. 7: 165-66, also 295, 493.
On Sargent's various tax laws in Mississippi see post ccccxxiv. Some of
these were undesirable because in conflict with the spirit of the Constitution,
as were the arson statutes of Mississippi Territory, which included within the
penalties for that crime whipping, pillorying, and unlimited forfeiture of
real and personal estate — Rowland, op. cit. 1: 230 and Carter, op. cit. 5: 87.
In Mississippi Territory, also, Governor Williams approved eight laws after
the end of his term of office — ibid. 5: 714 n. 82.
05 W. H. Smith, St. Clair Papers, 2: 357 seq. and 362.
CCCCXV
ILLINOIS HISTORICAL COLLECTIONS
too, "professed to agree with the Governor "on the principle of adop-
tion alone ... in order that no impediment may lie in the way of legis-
lative duty, ' ' although pointing out with proper emphasis the ambigu-
ities of congressional expression, and lamenting that for some local
needs there was no possibility of finding laws to adopt.96 After this
agreement it is doubly interesting to note what they did. St. Clair
later spoke of the work as a true abandonment of earlier lax practices
(though at the same time lamenting a recurrence to these in the legis-
lation of 1798) .fiT Salmon P. Chase stated that these laws of 1795
were "almost a literal transcript of the adopted statutes."08 But they
were such only in the claim made in their titles, not in fact. Mr.
Pease has shown by a careful comparison of them with their supposed
originals that there are "all possible degrees of variation" between
them; that most of the enactments were "short sections of [the
original] acts, considerably changed in wording and sometimes in in-
tent"; that one law borrowed only one section from a long original
act, and that section with more new than borrowed words as enacted ;
that another adopted only one sentence from one section of an original
of seventy-six sections; that "no discoverable affinity" or "very little
similarity" could be found between the new and the original law in
two other important cases ; that sometimes there were changes in essen-
tials— as in omitting a provision that various equitable decrees of
forfeiture should be conditional, or provisions for divorce in cases of
consanguinity or affinity. In addition changes of mere form, and
even of substantive matter, to suit the circumstances of the Territory
were very numerous." Among thirty-five laws there were four com-
posed of parts from two states. The legislative journal — published in a
newspaper as the work was done — frankly states many of the liberties
taken with originals. It is a curious fact that in the first instance of bor-
rowings on one subject from two originals these were printed as sepa-
rate acts — one "allowing" and the other "regulating" domestic attach-
es ZMd. 364-65.
117 Address of Feb. 4, 1799 to the lower house of the Assembly, ibid. 440.
98 Statutes of Ohio, 1: 138 n. The Ordinance required laws to be adopted
and published. The laws of 1788 are described in their titles as "published";
those of 1790, 1791, and 1792 as "passed"; those of 1795 and 179S as "adopted
and published." Half the laws of 1790 and all those of 1792 and 179S were
passed in sessions under Secretary Sargent as acting governor: the other
laws were passed under the guidance of Governor St. Clair.
nn T. C. Pease, Laics of the Northwest Territory (I.H.C. 17), xxvi-xxxi
ccccxvi
INTRODUCTION
ment ;100 but there were four other such cases and in all these one enact-
ment was allowed to include both originals, with no indication made in
the title of the double borrowing.101 It is simple fact that although one
repealing act102 did remove much earlier legislation (including all of
nine, and part of a tenth, of thirteen acts passed by Acting Governor
Sargent and the judges in 1792), the laws which replaced it contained
— so far as adoption is concerned — all the essential vices of the old.
Nor were there any essential changes, according to Mr. Pease, in
1798103 although as above indicated, Governor St. Clair referred to
the laws of 1798 (Sargent's, nota bene) as worse. One last attack on
the laws of the Territory was initiated in Congress in 1799 but made
no progress.104
The chief difficulty, the lack of original legislative power, ended
with the introduction of a representative government. The first legis-
lative Assembly of the Northwest Territory met in September 1799.
and Governor St. Clair, informing the members that some of the laws
were of very doubtful validity — among them those relating to the
militia, crimes, and taxation — counseled that "these" should be
"either repealed and others substituted ... or be confirmed by a
general law to give them force."1""' The Assembly thereupon, by its
first act, declared "to be in force" (saving portions earlier repea]ed
or altered) seventeen laws passed before 1795 and not repealed by the
legislators in that year.106
What did this accomplish! This alone: it removed one cause
for which Congress might in the past have exercised its power to
^o ibid. 137, 139. The journal required this — Ohio Arch. & Hist. Pub-
lications, 30: 34; in the list of laws at the end, however, they are listed as
one law, ibid. 53.
ioi T. C. Pease, Laws of the Northwest Territory (I.H.C. 17), 143 (small
debts), 154 (courts), 193 (taverns). 197 (recording); corresponding journal
entries in Ohio Arch. & Hist. Publications, 30: 34, 35 on first; 35, 36 on
second; 40 on third, 37, 39, 40 on fourth.
102 T. C. Pease, Laics of the Northwest Territory {I.H.C. 17), 255.
i°3 Ibid, xxix-xxx; one law not even purporting to be adopted. So far
as the legislative journal is concerned that was equally true of one law of
1795, that on imprisonment for debt — ibid. 286; with reference to which
differences between Judge Turner and his brothers very likely existed —
Ohio Arch. & Hist. Publications. 30: 34, 37, 40, 49. But in the printed laws
it is ascribed to Pennsylvania.
104 in Senate, Jan. 15, 1799— Annals, 5 Cong. 2202, 2203.
io5 w. H. Smith, St. Clair Papers, 2: 451, 453. His basic statement was
that the legislators "on several occasions . . . went further, and laws were
enacted by them of their own authority" (451).
io~6 t. C. Pease, Laws of the Northivest Territory (I.H.C. 17), 337.
ccccxvii
ILLINOIS HISTORICAL COLLECTIONS
annul the Territory's laws — that is, for imperfect adoption. But
they still remained subject to annulment. It is proper to note that
doubts of the legalnvy of those laws because of supposedly imperfect
adoption appear to have been due almost wholly (.so far as ascertain-
able written evidence exists) to Governor St. Clair. Most certainly
he could have laid those doubts had he willed to do so. Instead, he
steadily joined in the acts whose legality he questioned, and in the
final action of 1799 he was guilty of the duplicity of exempting from
re-enactment the laws later than those of 1792, though they hardly
less than the earlier laws required validation — if any did.107
Legislation in other territories formed in the Old Northwest no
doubt illustrated the same liberal interpretation of "adoption" as in
the parent territory, although nobody has clone for them what Mr.
Pease did for it in comparing original and adopted laws.108 By 1801
U)~ In view of St. Clair's great intelligence and usual common sense it is
very difficult to explain his record on the adoption problem. Were it not
for one fact I should be inclined to attribute it to the excessive "legalism"
which seems to result from knowing a little, but not much, law — law stu-
dents are never again so technically legalistic as at the end of their first
semester of study. That fact is the attitude of Attorney General Edmund
Randolph; how a good lawyer (if he was one) could expose to instability
a community's total legal system — and by statutory interpretations based
upon no inquiry into the laws' operation, but upon perniciously narrow
interpretations of words — is another mystery. Notice that from the first
St. Clair and Sargent differed utterly on the requirements of adoption; that
in 1792 the latter, with Judges Symmes and Turner, legislated frankly on
the theory of general legislative power— {post ccccxxvii) ; that in 1795 St.
Clair, with the same judges, repealed three-fourths of those laws — after the
United States Senate had refused to join in repealing all (ante at notecall
88); that Sargent, by one of the last entries made by him in the executive
journal of the Territory defiantly proclaimed his views as unchanged by
what had happened (ante at notecall 85); that the General Assembly under
St. Clair's guidance then "validated" the few laws of 1792 (and others) not
repealed in 1795; and, finally, that Sargent, attacked for applying in the
legislation of Mississippi Territory the same views he had championed
against St. Clair, carried the issue aggressively to Congress on the basis
of the precedents of the older Territory; and although the narrow view of
adoption was again mildly asserted no laws of Mississippi were disapproved
on that ground, and the precedents were accepted as sufficient to bar per-
sonal censure of Sargent (post ccccxxvii-viii).
St. Clair was extremely able, domineering, persistent, and markedly
adroit. He bore down most men on most questions if they opposed him, as
illustrated in the cases of Judges Symmes and Turner; but Sargent stood
his ground. It is suggested that the differences between St. Clair and Sargent
went deeper than the surface record shows. Despite the writer's admiration
for St. Clair's abilities his sympathies are with Sargent as respects their
personal relations. See post n. 133.
los Mr. Howe, however, states that some of the enactments "were clearly
objectionable upon the same ground upon which Congress had disapproved
ccccxviii
INTRODUCTION
it was apparent that Congress would not disapprove laws for alleged
laxity in that respect. In Indiana Territory, out of sixteen pro-
fessed "laws" or "acts" in the legislation of the first grade of gov-
ernment109 there were three that included parts of two originals,
and one law including three originals. But there was another and
much more significant group of enactments; namely, eleven so-called
"resolutions." Two of these were repealing laws, which needed no
disguise after 1792 and had not been given any in the Northwest
Territory.110 But the other nine were simply original legislation ; and
the large proportion of such laws in the total legislative output, as
well as the boldness of the assumption that their name would give
them immunity to congressional disapproval, suggest a feeling of legis-
lative freedom.
Very similar is the record in Illinois Territory, but it indicates
an even greater disregard of the supposed interdiction of original
legislation. A total of thirty-four laws, under different names, were
passed under the first stage of government.111 Of these only thirteen
purported to be adopted from laws of other states,112 and there were
some of those of the governor and judges of the Northwest territory, viz:
that they had not been adopted from the laws of the original states" — D. W.
Howe, "The Laws and Courts of Northwest and Indiana Territories," Indiana
Historical Society Publications, 2: 22.
109 Philbrick, Laios of Indiana Territory (I.H.C. 21), 1-87; these descrip-
tions ("acts," etc.) meant nothing- — ibid. cix.
110 The legislative journal of 1795 shows a motion by Judge Turner
that all resolutions, having the force of laws should be added as an appendix
to the printed laws — Ohio Arch, d- Hist. Publications, 30: 49; and four were
so added. One of these read that whereas public ferries were a public con-
venience, but "no laws concerning Ferries can be found for adoption, but
such as are of a local, not general nature," the governor should establish
ferries "by proclamation, or otherwise," and the rates should be fixed by
the Courts of Quarter Sessions. Another provided that when persons "suf-
ficiently learned in the law" were available as judges in the Common Pleas
"it would be the safer way to commission them during good behaviour";
and that commissions not expressly limited in duration should be revocable
(supported by a legal "boner" that they "are in the nature of a grant, and
must be taken most favourable for the grantor"). Still another empowered
the governor, if he should find that decreasing population made it incon-
venient to hold court regularly in the district of Prairie du Rocher, to
abolish that district, suppress sessions of the courts therein, and divide
it between the other districts of St. Clair County. See T. C. Pease, Laws
of the Northicest Territory (I.H.C. 17), 287-88. «
in Post nn. 113 and 164.
112 In Indiana Territory three laws were adopted from Kentucky, two
from Virginia and Kentucky in combination; in Illinois Territory six adop-
tions were from Kentucky — see ante at notecall 73. One of the Illinois adop-
tions was from the Pennsylvania constitution— post 40.
ccccxix
ILLINOIS HISTORICAL COLLECTIONS
thirteen others which were examples of outright legislation giving no
indication of adoption.115 A quotation already given from Governor
Ninian Edwards114 is clearly indicative of the freedom with which
the legislators acted.
Michigan Territory, created in 1805, may also be briefly dismissed.
Legislative problems of the first grade of government found, indeed,
their fullest and in some respects their most contentious develop-
ments in that Territory, which was subjected to the first grade for
nineteen years. But in Michigan, as in Indiana and Illinois terri-
tories, Congress never interfered. On the issue between making or
adopting law there was, too, very little difference of opinion between
judges and governors, presumably because of the incisive and dominat-
ing character of Chief Judge Augustus B. Woodward. The loose
practices of adoption in "Woodward's Code" were made much of by
the partisans of the "Witherell Code," but the differences between
those two bodies of legislation did not depend upon different practices
in -adoption but upon variant legislative procedures of another nature
that will be referred to elsewhere.11"' Almost immediately after the
formal initiation of territorial government the judges were instructed,
at the first meeting Of the legislature, to consider and report upon the
question whether they were empowered to "adopt" the laws of a
state created since 1787. They promptly decided in the affirmative,
as already noted.110 It is obvious that they were fully informed of the
problems that had arisen in other territories (Judge Woodward came
from the District of Columbia) and resolved to adopt settled prin-
ciples to control their actions. A report, several times already quoted,
made less than a year later by Judge Woodward to the Secretary of
State, shows that every liberal practice followed in older territories
113 it is habitually stated that there were 35 laws. However, the first
of these was in both form and fact a mere resolution declaring an opinion
that the laws of Indiana Territory, of a general nature, were law in Illinois
Territory. All the rest of the 35 were labeled "act" (25) or "law" (9).
The 13 (including the initial resolution) which did not profess to be other
than original legislation included 4 laws dealing with county courts, 4 with
the General Court, 2 with arrearages of a sheriff, 1 with territorial revenue.
1 with legal advertisements. In addition to the 13 "adopted" and the 13
original laws just analyzed there were 9 repealing laws.
Dr. Carter's first volume on Illinois Territory (Territorial Papers, 16)
contains, seemingly, nothing on the adoption problem.
ii4 Ante n. 75.
us Post ccccxlvii seq.
n« Ante ccccviii.
ccccxx
INTRODUCTION
(with a single exception, for application of which there had been no
opportunity117) had been followed in enacting the laws of "Wood-
ward's Code" in 1805. 118 In reporting to the President, immediately
after its completion, upon the affairs of the Territory, Governor Hull
and Judge Woodward stated frankly ; ''On all the subjects requiring
legislation, the present Government act with difficulty, and on many
cannot act at all" — and set out in convincing manner the absolute
impossibility of literal ' ' adoption ' ' if laws were to be in any true sense
laws of Michigan Territory.110 With equal frankness the later state-
ment to the Secretary of State was printed as a preface to the original
edition of "Woodward's Code." That facilitated attacks upon
Woodward,120 but had no other effect. Common sense was too evi-
dently the foundation of the legislation to permit of its repudiation.
There is no reason to believe that Jefferson or any of his advisers
ever doubted the propriety of the construction given to the Ordi-
nance's provisions. It is questionable whether there was any actual
doubt by anyone after an end was put to St. Clair's scruples in 1799
ii" "Doubts existed whether there was .authority to adopt a law which
had been passed by a State, and afterwards altered or repealed; and how far
the repeal of a law by a State, after its adoption by the Territory, affected
its subsequent validity; but no cases occurred which rendered it necessary
to decide these questions" — Mich. Pioneer and Hist. Soc. Collections, 31:
563. The first situation arose — perhaps Woodward knew it had arisen — in
the Northwest Territory; see n. 77 ante. The second situation proved to
be involved in a Michigan act of 1817; see -post ccccxxxix.
us Government was officially instituted on July 2, 1805. These laws
were enacted between July 9 and Oct. S. Judge Woodward's letter, written
in Washington on May 8, 1806 is quoted or cited ante nn. 73, 75, 79; post
n. 179; it is an extremely clear, forthright, and comprehensive statement of
the principles followed in Michigan, Indiana and Illinois territories; and, in
general, can be rested on precedents of the Northwest Territory.
H9 This letter was of Oct. 10, 1805 — American State Papers, Public
Lands, 1: 249. The statement is quoted more fully in Philbrick, Laws of
Indiana Territory (I.H.C. 21), cvii-cviii.
i20 In a petition of Aug. 27, 1810 one point made was that all the laws
were passed "when not one of the members of the local government were
qualified with the freehold estate ordained by said ordinance. . . . Adjourn
then we pray until you are legally qualified" — Mich. Pioneer and Hist. Soc.
Collections. 8: 617, 619. These charges were almost certainly true in 1805;
they may very well have been true in 1810; see citations in Philbrick, Laws
of Indiana Territory (I.H.C. 21), xciii n. 2. The truth is, unquestionably,
that if the Ordinance's requirements for voting and holding office had not
been by tacit agreement ignored there would have been few legal voters, few
qualified officeholders, and few valid laws in any of the early territories.
The sensible criticisms, by other petitioners of Oct. 16, 1809, of the
Ordinance's adoption requirement is quoted in the last-cited work, cviii n. 1.
There is another petition of July 1807 in Carter, Territorial Papers, 10: 116.
ccccxxi
ILLINOIS HISTORICAL COLLECTIONS
by the action of the General Assembly.121 One wonders whether St.
Clair's position did not gradually come to rest upon a desire to
deprive Republicans of a political issue. So far as "adoption" was
anywhere an issue after 1795 it seems to have been essentially
political, only.
As a matter of fact the issue, as one of law or legislative policy,
had been settled in Congress in 1801. When Secretary Sargent left
the Northwest Territory as governor of Mississippi Territory he pur-
sued in the latter the procedure he had followed, and steadily defended
against St. Clair, in the former territory. He was denounced in Natchez
for his personality, his laws, and above all else for his advisers
and his appointments. Primarily a soldier, and of an unapproach-
able, taciturn, and unpliable character, his enemies saw him (in both
territories) as arrogant, insolent, and tyrannical. He was likewise
a Federalist, and although he did not exclude Republicans from his
civil and military appointments, his advisers and high appointments
included none of the Republican extremists who were impatient to
seize power in the Territory. Their differences, at first factional,
became national when a Kentucky representative in Congress carried
their memorials there early in 1800. In his words, Sargent had
"acted under the influence of a faction and pursued the principles
of despotism, by indulging an unwarrantable distrust of the great
body of the people."122
In essence his troubles were political, but his laws were made an
issue in Congress. He had been little more than six months in
Natchez when a grand jury of one county presented as "a great &
enormous grievance" the alleged fact that the laws had been "framed
by people . . . who did not pay that attention to the local circum-
stances and interest ... of the Territory" which was proper — -"par-
ticularly" in forbidding the inhabitants to bring into it from the
Spanish territory across the Mississippi Negroes alleged by the
inhabitants to be their slaves.123 The complaint was put upon
a less "particular" basis by the grand jury of another county a
few days later, in presenting, as a fact and a grievance, the
121 Ante ccccxvii-xviii.
12- Thomas Terry Davis, later a judge of Indiana Territory — see Phil-
brick, Laws of Indiana Territory (I.H.C. 21), ccxxvii, ccxxxvi.
is:* Grand jury of Adams County, June 6, 1799 — Carter, Territorial
Payers. 5: 65.
ccccxxii
INTRODUCTION
charge "that the Governor and Judges should assume to them-
selves the liberty of making Laws, whereas the ordinance . . . em-
powers them only to adopt laws."124 The few ambitious individuals
who engineered these presentments addressed themselves directly to
the Governor and judges two months later. To the former they com-
plained, in the character of a "Committee of Inhabitants," of "a
want of confidence . . . clearly demonstrated in the rigorous and un-
constitutional measure of the criminal laws," which should, they
protested, "be administered with . . . clemency and humanity."12''
To the Governor and judges jointly they protested against the viola-
tion of the Ordinance in not adopting laws as it required. If, they
said, this was "for want of the several State Codes (which is readily
admitted) we conceive they might (in a dilemma like this) with
great propriety have made it known to the People ■ who . . . would
gladly have sent . . . [representatives] to assist in forming regulations
for the time being . . . ; And regulations so formed, would have had
all the force and Authority of Laws — the People . . . would have given
them every practical support."126 "Admitting" — the Governor and
judges answered— "... that we have not a power to enact Laws on
any occasion — upon what principle, can you Gentlemen . . . say that
we ought to delegate a power to others which you deny to exist in
ourselves?"127 The Committee retorted that there was a great differ-
ence between "making laws" without power to do so and "forming
temporary regulations" that would be "only a temporary compact
Embracing . . . the various interests of the country."128
To the charge of making, rather than adopting laws, the Governor
and judges admitted so doing only when "evils actually existed" to
124 Grand jury of Pickering County, June 17, 1799 — ibid. 67.
12"' Sargent steadily contended that they were a minority of such a com-
mittee. Most of their letter to Sargent consists of vague political charges;
first, against Andrew Ellicott (see DAB), upon whom Sargent had leaned for
advice; second, against the latter. They denounced the supposed party
favored by Sargent ("the spawn of corruption . . . basking in the sunshine
of favour — fattening on the emoluments of Office, and smiling at the down-
fall of publick confidence"), but their only specific demands were two. One
was that the government should "avail itself of the aid of publick opinion,
in all future appointments, particularly in the Militia" (compare post
cccclxvi) — letter of Aug. 26, 1799, in Carter, Territorial Papers, 5: 71-76, at
74. The other was the criticism of the criminal laws, stated in the text —
ibid. 75.
i2G Letter of Aug. 27, 1799 — /&/r7. 77-78.
127 Letter of Oct. 5 — ibid. 86.
i2s Letter of Oct. 21— ibid. 88.
ccccxxiii
ILLINOIS HISTORICAL COLLECTIONS
remedy which no provision could be found in laws of the original
states to which they had access ; and that where they departed from
models they had lessened fines and penalties.129
There was, of course, basis for the charge that they had "made"
laws independently. As above stated, the conflict was laid before
Congress by a Kentucky representative, whose charges attacked a
law on ferries — authorizing the governor to establish them "by procla-
mation or otherwise " ; a law on crimes that included among the penal-
ties for treason unlimited forfeiture of all property to the Territory ;
a law on taverns that provided for collection by the governor of license
fees — also a practice of collecting fees for marriage licenses and for
passports for travel from the Territory through the Indian country ;
and a law on fees that allowed the territorial judges fees for signing
judgments, taxing costs, granting writs of error or supersedeas, and
other official acts.130 The ferry statute was precisely equivalent to
the "resolution" of the legislators of the Northwest Territory in 1795,
and to similar laws in Indiana and Illinois territories.331 It is con-
ceivable that some model of a ferry law could have been found. But,
after eliminating place names and other inappropriate details, what
public policy could have been promoted by requiring a model for a
statement that whereas public convenience required a ferry near
over the River, now therefore, etc? The penalty for treason was
unconstitutional if the Constitution had any relevance to territorial
legislation, but it had not ; however, as already noted, such legislation
had no relevance to treason and the entire statute was for that reason
a nullity.132 As for the fees for passports, tavern licenses, and marriage
licenses, they too were based on precedents of the Northwest Territory.
129 As in n. 127, ante.
iso May 14, 1800— Annals, 6 Cong. 1 Sess. 717-18.
i3i See ante n. 74.
132 See ante n. 94; cccxiii-xv, cxxiii-v, cxliii-v. Penalties fixed in the stat-
utes against treason, and arson, Sargent wrote to the Secretary of State,
were "alike exceptionable. No legal decision or proceedings, however,
have been had thereupon. . . . But, when it shall mercifully be con-
sidered that the law for the punishment of arson in the Northwestern Terri-
tory, subject to the same constitutional objections with any of the Statutes
of this Government, had been ten years before Congress at the time we
adopted it, (and never disapproved,) it must be received as an extenuation
of our crime"— letter of Aug. 25, 1800, ASP. Misc. 1: 236 or Annals. 6 Cong.
2 Sess. App. 1384; 1381-89 for Sargent's letter of Aug. 25; 1376-97 for entiie
report.
ceccxxiv
INTRODUCTION
and had analogues in other territories. 13a Sargent defended them
on the ground that they involved services outside the official duties
133 A passport cost $25 in Mississippi at this time. Leaves to enter or
cross Indian lands were issued under the police powers of territorial gov-
ernors as superintendents of Indian affairs; see committee report of July
26, 1787 to the old Congress — Carter, Territorial Papers, 2: 57. They might
also be provided for in treaties — see, for example, ibid. 4: 63. To enter with-
out permit upon Indian lands was an indictable offense — Philjbrick, Laws
of Indiana Territory (I.H.C. 21), clxxx. Passports were perhaps a useful
means of keeping track of persons. Narsworthy Hunter, associate of Cato
West as leader of Sargent's most bitter enemies, slipped away without a
passport when he carried to Washington the memorial of the Committee of
Inhabitants on which was based the reorganization of the Territory's gov-
ernment— D. Rowland, Miss. Territorial Arch., 1: 245.
Governor St. Clair's salary of $2000 as territorial governor and super-
intendent of Indian affairs was supplemented by allowances for office rent,
stationery, and incidental expenses — usually $300 annually, U. 8. Stat, at
Large, 1: 226, 500, 2: 523, 4: 189, 766. He was also allowed $8 (usually) per
day while actually engaged in negotiating Indian treaties. By resolution
of Aug. 7, 1795 the governor and judges, and their servants, received free
ferriage — T. C. Pease, Laivs of the Northwest Territory (I.H.C. 17), 158,
287. And for some of his traveling expenses outside the Territory in 1787-
1789 he was reimbursed by Congress — U. 8. Stat, at Large, 6: 16.
The fees and licenses referred to in the text were a notable addition to
income. After Sargent's organization of government in Wayne County in
1796 (ante cccxcvi-vii). Peter Audrain collected for him fees for tavern and
ferry licenses. For Indian trading licenses he took from licensed merchants
their written obligation to pay the fee Sargent should fix, informing them
it had formerly been $50, "but perhaps might be less now"; they made, he
said, no objection — -"they will cheerfully pay" — Audrain to Sargent, Oct. 31,
1796, Mass. Hist. Soc. : Sargent Papers (copy read in State Dept. ). Before
Governor St. Clair left the Territory (Sargent still in the north, acting as
governor) he commissioned Major Gano "to give Licenses ... to -keep
public houses" in Hamilton County (Cincinnati) — Carter, Territorial JPapers,
3: 464. Acting Governor Sargent disputed the Major's power. The territorial
attorney general, Governor St. Clair's son, reported to the Governor an in-
tent to indict anybody acting under commission from Sargent, subject to
St. Clair's approval — A. St. Clair, Jr. to Governor St. Clair, Ohio State Li-
brary: St. Clair Papers (copy read in State Dept.). In fact, the Governor
had issued similar commissions for other counties to other persons. He ex-
plained that the power was merely "to distribute" the licenses; though
signed by him in advance, the Major, he wrote, had been instructed to
account to Sargent for the fees. But the other three parties had apparently
not so understood, and the misunderstanding was a distressing one to
Sargent. He renounced the "paltry" fee on licenses not signed by himself —
St. Clair to Sargent, Feb. 22, 1797, Ohio State Lib.: St. Clair Papers and
Sargent to St. Clair, March 20, 1797, Mass. Hist. Soc: Sargent Papers (copies
of both read in State Dept.). This is one of various instances in which
St. Clair impresses the writer as having maliciously wounded Sargent, al-
ways with an adroitness baffling to his forthright and less nimble-witted old
companion in arms.
When Governor William Henry Harrison of Indiana Territory, who had
served a year and a half as secretary with St. Clair (Carter, Territorial
Papers, 3: 508, 522), applied in 1805 for an increase of his salary as super-
intendent of Indian affairs, he wrote: "I have never received a single Six-
CCCCXXV
ILLINOIS HISTORICAL COLLECTIONS
of his office, for performance of which his salary was paid.134 But
such a defense was unavailable to the territorial judges as respected
their fees, and public policy certainly called for a minimum of
charges on judicial costs — whatever the practice might be.135 A reso-
lution disapproving the tavern fee and the fees for judicial process
passed the House of Representatives ; the Senate proposed to amend
this by invalidating all of the Territory's laws. This disagreement
preventing separate action on the laws, that problem was later re-
ferred to a committee charged with an inquiry into Sargent's official
conduct. This committee had before it all the complaints from the
Territory, and was free to submit recommendations respecting both
the laws and the removal or reprimand of the Governor. Its report
was submitted a full year after initial consideration of the charges
had first come before the House. Its conclusions were well pon-
dered.130
As respected disregard of the adoption requirement, Sargent was
entirely frank. In one letter he wrote to the Secretary of State :
Many letters in your office evince my anxiety to have possessed the
pence either directly or indirectly for issueing of licenses to Trade with the
Indians — a practice which gave to my predecessor at least 1000 Dolls per
annum" — ibid. 7: 295. Jefferson recommended an increase, but the result
was ultimately merely an increase in the salary of territorial secretaries
(in Mississippi, Indiana, Missouri, and Michigan) from $750 to $1000 — act
of Dec. 5, 1807, Annals, 17 Cong. 1 Sess. 43, 2813; U. S. Stat, at Large, 2: 450.
The above data regarding St. Clair are probably typical of the early ter-
ritories generally. On Harrison there is more information in H. J. Webster,
"William Henry Harrison's Administration of Indiana Territory," Ind. Hist.
Soc. Publications. 4: 188-89.
134 And also on the "long-continued practice of the Northwestern Terri-
tory, and which received the approbation of [i.e. was not disapproved by J
Congress" — Sargent to Secretary of State, Aug. 25, 1800, ASP, Misc. 1: 235.
135 This ideal was voiced in both the Southwest and Orleans territories —
Carter, Territorial Papers. 4: 265, 9: 779-80; but such fees were an unavoidable
result of the inadequate salaries paid in the territories to the county and
lower territorial officials.
i'!,i The resolution (May 9, 1800) is printed in ibid. 5: 92; see Annals.
6 Cong. 1 Sess. 717-18. In Dec. 1800 the author of the resolution, Representa-
tive Davis (ante n. 115) moved its reference to a committee to which had
just been assigned consideration of certain election problems presented in a
memorial from the territorial House of Representatives — Carter, Territorial
Papers, 5: 107. An interesting debate followed, Annals, S38-54. The two
matters were not joined; on the election problem see ibid. 1038. Ultimately,
Davis's resolution went to a special committee charged with a general in-
quiry into Sargent's administration — ibid. 854. It reported on Feb. 19, 1S01;
see citations to this in the notes immediately following. What follows in
the text refers to this committee. See Carter, Territorial Papers. 5: 93 n.
14, 94 n. 15, and 105 n. 44.
ccccxxvi
INTRODUCTION
codes of the original States.137 We began by legislating, however,
with the laws of the Northwestern Territory ; they had been long sub-
ject to the disapprobation of the honorable Congress ; and daring
not to doubt their intention, we believed them good.138
In another letter he wrote :
the Governor and judges very willingly admit "that they have made
laws." As Secretary of the Northwestern Territory, and [i.e. when]
vested with the powers of the Governor, I fully concurred with the
judges that we were a complete legislative body. We never hesitated
to manifest this to Congress ; and the laws by Governor St. Clair,
the judges Parsons, Symmes and Varnum, enacted as early as 1788,
demonstrated that such also was their opinion. I solemnly . . . deny
a deviation from the ordinance of Congress in the thus enacting of
laws, for the ordinance, in my acceptation thereof, tolerates so doing;
in strong presumptive proof of which . . . the laws which were regu-
larly transmitted to the General Government, in one solitary instance
only were disapproved. ... As a further proof of their will and
pleasure that we should "make laws," they have enacted, nearly in
the words following, "that the laws of the Territory that have been,
or hereafter may be enacted by the Governor and judges, ' ' &c. ; and
again, that the Governor and judges shall be authorized to repeal
their laws by them made.139
The committee, after frankly noting the precedents of the North-
west Territory, the inconsistent actions of its officers, and the failure
of Congress to disapprove their legislation, concluded that although
Governor Sargent's action in "making laws" and taking fees were
"irregularities," yet they arose only from incorrect opinions and
not from impure motives, and they therefore reported that there was
no cause for further proceedings.140 So far as regarded Sargent's
removal from office, his enemies could afford to be content. Nine
months earlier — at the time when the House had voted its disapproval
of the tavern and court fees — the Territory's governmental system
had been revised, and it had become evident that Sargent would not
137 The committee report just cited prints his letter of Aug. 25, 1800 and
quotes letters of March 3, 1799 and June 15, 1800. In the former he had
written: "destitute of the laws of the several States, we necessarily make laws
instead of adopting them; the right to do which has heretofore been a ques-
tion"— Annals, 6 Cong. 2 Sess. 1380 or ASP, Misc. 1: 234.
i"s Letter of June 15, 1800— Annals {ante n. 129) at 1378 or ASP. Misc.
1: 233.
139 Letter of Aug. 25, 1800— Annals at 1383-84, or ASP. Misc. 1: 233.
1*0 ibid. Annals at 1381; ASP, Misc. 1: 234.
ccccxxvii
ILLINOIS HISTORICAL COLLECTIONS
be continued as governor.111 The mild dismissal of the adoption
problem is substantively more significant. Sargent had made it plain
that there were, for all his acts, precedents which Congress had for
years either ignored or refused to regard as seriously objectionable.
If there was any doubt that the issue was a dead one. Congress
made that clearer in its legislation for the District of Louisiana in
1804 and 1805. It would seem that if there was any territory in
which it would have appeared essential to insure the observance of
sound republican principles in legislation it was that District.142
Nevertheless, the terms in which Congress extended over it in 1804
the legislative authority of the governor and judges of Indiana Terri-
tory were these: that they should have "power ... to make all laws
which they may deem conducive to the good government of the in-
habitants thereof," save for restrictions guaranteeing freedom of
religion.143 When the ordinary first grade of territorial government
was extended the next year to the District (as the Territory of Louisi-
ana— later Missouri) its own governor and judges were granted legis-
lative powers in the same terms.144
And thus Congress had come at last to realize — and tacitly admit
now that Federalist officials had been ousted from the territories —
that the adoption clause of the Ordinance had been an awkward,
trouble-stirring provision; one that was unworkable and compelled
evasion; and one that could be safely omitted.
(2) Another Type of Adoption in the Northwest:
Continuity of Territorial Legislation.
It is an extraordinary fact that in the course of all the events
above narrated the parties to the controversies over the adoption pro-
141 By an act of May 10, 1800 it was given a government of the second
grade — Carter, Territorial Papers, 5: 95.
142 in the Territory of Orleans legislative power was vested in the gov-
ernor and legislative council appointed by the President. Their power was
described as extending "to all the rightful subjects of legislation" — sec. 4
of act of March 26, 1804, Carter, Territorial Papers, 9: 202. It is an amazing
fact that although Jefferson, after "examining" the Ordinance, saw that it
would not do for the Territory of Orleans (post n. 154), he still believed
"best to appoint a governor & three judges; with legislative powers, only
providing the judges shall form the laws, & the Governor have a negative
only, subject further to the negative of the National legislature" — Nov. 9,
1803, ibid. 100. For Judge Augustus B. Woodward's views of the ideal govern-
ment for Michigan in 1805 see ASP, Misc. 1: 462.
143 Sec. 12 of same act — Carter, Territorial Papers. 9: 210.
144 Act of March 3, 1805— ibid. 13: 93.
ccccxxviii
INTRODUCTION
vision of the Ordinance seem to have made no mention of the South-
west Territory. For that reason no reference to it has thus far been
made by the writer. Yet the slightest attention to its laws would
have ended controversies among reasonable men over the adoption
problem in other territories. The cession act of North Carolina, al-
though one of its conditions required Congress to govern the "ceded
territory ... in a maimer similar to that . . . [practiced] in the terri-
tory West of the Ohio," contained another condition "That the laws
in force and use in the State of North Carolina at the time of passing
this Act, shall be and continue in full force within the territory here-
by ceded until . . . altered by the Legislative authority of the said
territory."145 The execution of this latter provision was entrusted,
as in the other territories, to the governor and judges. In 1792 Judge
David Campbell submitted to the President this question: "where the
Ordinance . . . and the Laws of North Carolina . . . are contradictory,
which is to take place?"146 The President declined to venture an
opinion,147 but in the Judge's "observations" (which were in fact
a charge he had given to a grand jury) he gave precedence co the
Ordinance. No one, he supposed, would deny it was the Territory's
constitution in the sense that to it all the Territory's laws must con-
form. This was obviously true of any legislation by its governor and
judges ; Judge Campbell assumed that North Carolina and Congress
would not have intended otherwise as respected North Carolina laws
in force within the Territory as territorial law. Hence, as respected
the number, titles, mode of appointment, and powers of officials the
Ordinance controlled as against any provisions in North Carolina
laws.148 As to what laws of North Carolina were in force, and to
what extent, the Judge declared :
our System of Laws is the Statutes of North Carolina as far as they
apply to our particular Circumstances: The mode of administering
those Laws must be conformable to the Ordinance. . . .
It would be preposterous to say the Laws of North Carolina are
to be adopted in Toto. . . .
""'See ibid. 4: 7, 11, 12, 16 for acts of North Carolina and the United
States.
146 /&•£(?.. 121.
i4r iua. 130.
148 For example, that portion of the territory of North Carolina which
now constituted the Southwest Territory of the United States had two judges;
under the Ordinance it had three.
ccccxxix
ILLINOIS HISTORICAL COLLECTIONS
It is evident that the laws of North Carolina were intended only
to be partially adopted in the place of those laws that the Governor
and Judges were authorized to Select from the Laws of the different
States and that those Laws are to be administered by Officers ap-
pointed agreeably to the Ordinance : In no other way could it be a
Government similar to that Northwest of the Ohio. . . .
[The condition giving force to the laws of North Carolina] could
never apply to all the laws of North Carolina, but such only as suited
our Circumstances as required by the Ordinance. . . . only such Laws
of North Carolina as are applicable to the particular circumstances
of this Territory were adopted. ... It cannot be supposed that by
the adoption of the Laws of North Carolina it was intended that the
Ordinance should be abrogated, they were only intended to supply its
deficiencies and so to make a more complete and perfect System of
Laws.149
Since the organization of the Territory Governor Blount had
proceeded on the principles stated by Judge Campbell. In successive
counties over a period of some three and a half months (one county
comprised the present state of Tennessee) he convened all holders
of commissions from the state of North Carolina, declared all com-
missions void, forbade any future action under them, read the Ordi-
nance, and by its authority appointed all civil and military officers of
counties, judicial districts, or other political subdivisions.150 That
the Southwest Territory enjoyed an administrative history of entire
harmony is readily understandable. It was wholly untroubled by
the controversies over statutory adoption which in other territories —
where the problem was vastly simpler in legal possibilities — caused so
much trouble. None of the officers of the Southwest Territory ex-
celled St. Clair in ability, but they surpassed him in judgment.
The success in actual administration of this provision of North
Carolina's cession act, which unquestionably, as interpreted, gave
effect to the intent of Jefferson in his ordinance of 1784,151 is strong
justification for the praise given in earlier pages to Jefferson's pro-
vision as compared with that of the Ordinance of 1787. 152
i« Ibid. 123, 124, 125, 128.
iso ibid. 429 seq.
i5i Ante ccccii-iii.
152 Ante ccliv-vi, cclxxx-xxxi. On the other hand Francis N. Thorpe,
whose work on A Constitutional History of the American People, 1776-1850
(2 vol. 1898) contains a great mass of information on the spread of democ-
racy, characterizes the Territory's organic act merely as subordinating the
powers of Congress over the territories to the will of a local legislature
(Tennessee's) — that is with respect to slavery — ibid. 1: 150.
ccccxxx
INTRODUCTION
In view of its practical success in the Southwest Territory it
seems odd that no suggestion was made that Congress adopt it in later
territories in place of the unworkable plan of 1787. Jefferson's plan
would have provided each territory, more quickly and with infinitely
less trouble, with a complete body of statutes as far as was practically
necessary. One's wonder over this matter' is increased by the fact
that as respects the Territory of Orleans and the District of Louisiana
Congress did adopt a policy essentially the same as that followed in the
Southwest Territory. Both of those territories had a considerable
population.153 Both of them, also, had a body of established law; to
have introduced into them the Ordinance's provisions for legislation
would not only, as Jefferson said, have turned "all their laws topsy-
turvy"154— if anything could have caused a revolution that would
have done so. Accordingly in each territory the laws formerly in
force therein (and not inconsistent with the acts of Congress creating
them) were continued in force until they should be repealed or modi-
fied by their legislatures.155 Far more than the Southwest Territory,
as much as Orleans or Louisiana-Missouri, the Illinois Country might
have been considered entitled to such consideration, and in theory it,
too, did receive such, within one restricted field, in the Ordinance,
although the rapid attainment by Americans of an enormous prepon-
derance in the population (as likewise in Missouri) made the provision
almost meaningless.156
153 The inhabitants of the District (Missouri) strongly objected to the
extension over them of the legislative power of the governor and judges
of Indiana Territory, on the ground that the latter had a smaller popula-
tion.
154 "Without looking at the old Territorial ordinance," wrote Jefferson
to Gallatin (Nov. 9. 1803), "I had imagined it best to found a government
for the territory or territories of loicer Louisiana on that basis, but on
examining it, I find it will not do at all; that it would turn all their laws
topsy-turvy"- — Carter, Territorial Papers, 9: 100.
is9 Sec. 2 of act of Oct. 31, 1803, as interpreted by the executive — ibid.
9: 90 n. 10; sees. 11 and 13 of act of March 26, 1804— ibid. 210, 211; sec. 4
of act of March 2, 1805 relating to Orleans Territory — ibid. 406; and sec. 9
of act of March 3, 1805 relating to the Territory of Louisiana (Missouri) —
ibid. 13: 94. The Secretary of State cautioned Governor Harrison of Indiana
Territory respecting the restriction thus put upon the power of the Indiana
legislators to "make" law for the District of Louisiana — Annals, 8 Cong.
1 Sess. 1298.
156 See Philbrick, Latvs of Indiana Territory (I.H.C. 21), ccxii-ccxxii;
also ante ccxxvi sea., ccxlviii-ix; and review of W. F. English, The Pioneer
Laivyer and Jurist in Missouri (1947, University of Missouri Studies, 21, no.
2) in Lawyers Guild Review (1948), 8: 378.
ccccxxxi
ILLINOIS HISTORICAL COLLECTIONS
At least two reasons, in their joint effect, explain why Congress
was not forced to alter the Ordinance's legislative plan before it
repudiated that and other stupidities by abandoning wholly the first
grade of government. One is that, with seemingly the single exception
of Governor St. Clair, the territorial officials agreed in so interpreting
the adoption requirement as to make it awkwardly workable. The
other reason is that the inhabitants of the Indiana Territory had the
common sense — which, indeed, deserves rather the name of political
genius — to put into practice, without any justification in the Terri-
tory's organic act for so doing, substantially the legislative system of
the Southwest Territory ; that is, in addition to the liberalized
adoption requirement of the Ordinance. From the very first it was
assumed in Indiana that the legislation of the Northwest Territory,
not of a local nature, continued in force in Indiana Territory. Eight
months later an act was passed by Congress, supplemental to the or-
ganic act, by which it was provided that all legal proceedings which
on the daj7 before that act became effective were pending in courts of
counties assigned to Indiana Territory, or had been thence removed
for trial in the General Court of the Northwest Territory and were
therein at that time pending, were revived and continued, and that
"the same pleadings before the rendering of final judgment and there-
after" should be had "in the same courts, in all suits and process
aforesaid, and in all things concerning the same, as . . . might have
been had in case the [Northwest] territory had remained undi-
vided."157 It is quite obvious that this implied the continuance of
the same courts and jurisdiction, the same auxiliary officers, and prac-
tice-— with all territorial legislation affecting those subjects ; likewise
the same traditional adjective law, and a great mass of substantive law
imbedded therein. It obviously required, also, the appointment of
judges, sheriffs, and coroners; and therefore the continuation un-
changed of the counties — as did the reference to them in the supple-
mental act of Congress. But Congress merely belatedly approved
what the officials of the new territory had instinctively done. All the
county judges, sheriffs, and other officers had been appointed ; all
suits and proceedings, in Indiana and in the Northwest Territory's
General Court, had gone forward unchanged.158 No doubt there had
i^Act of March 2, 1801— U. S. Stat, at Large, 2: 108. Division became
effective on July 4. 1800.
is** Phil brick. Law,'; of Indiana Territory (I.H.C. 21). cii-civ. cix n. 1,
ccccxxxii
INTRODUCTION
been a very natural assumption among the inhabitants of the new
territory that laws passed for them, while citizens of the older terri-
tory, should not be regarded as ceasing to govern them when, by a
change in boundaries, they Avere made citizens of a new territory
created out of the old and with a political government precisely the
same. And the general wording of the organic act, emphasizing a
change merely "for the purposes of temporary government," would
probably have been regarded as justifying the assumption.150 Divi-
sion was only for the purpose of bringing government, including
courts very particularly, nearer home. It would have been insanity
to destroy the entire governmental system, from townships and coun-
ties upward, and all the law by which government was paid for and
regulated. The idea, undoubtedly, never occurred to the draftsmen
of the organic act that they were doing so ; and fortunately it never
occurred to the inhabitants of the Territory.
In the case of Illinois and Michigan territories the same provi-
cxiv, cxxiii and nn., cxxiv n. 2, cxxvii n. 1, cxxviii n. 3, cxxxi n. 1, cxxxiv n. 1,
cxlix n. 5; Pope's Digest, lSlo {I.H.C. 28) 1: xv-xviii. For appointments
see W. W. Woollen, D. W. Howe, J. P. Dunn, eds., J. Gibson's "Executive
Journal of Indiana Territory, 1800-1816," Indiana Historical Society Publi-
cations. 3: 75, 77-79, 92. There is a general discussion in L. J. Monks, ed.,
Courts and Lawyers of Indiana (3 vol. 1916), 1: 22-23, 33-36.
It would seem to be necessarily true that law of the parent territory
could be enforced only so far as not inconsistent with the later law of Indi-
ana Territory, and that any law of the latter must have been law in all por-
tions of the Territory. Mr. Blume, referring to Wayne County of the North-
west Territory, the western portion of which was included in 1800 and the
eastern portion in 1802 in the Indiana Territory, mentions Mr. Webster's
citation (H. J. Webster, "William Henry Harrison's Administration of
Indiana Territory," Ind. Hist. Soc. Publications, 4: 188 n.) of a decision
by the court of Indiana Territory that a law of the Northwest Territory
passed after 1800 remained in force after 1S02 in what had been the eastern
portion of the original Wayne County, though a contrary law was effective
at the same time in the rest of Indiana Territory, including what had been
the western portion of the original Wayne County — W. W. Blume, Supreme
Court of Michigan Territory, 1: xxxv. I have never been able to believe
this — Philbrick, Laivs of Indiana Territory {I.H.C. 21), cv n. 1.
!"19 In the writer's introduction to The Laws of Indiana Territory {I.H.C.
21), cv, he relied only upon that wording to explain why the laws continued
unchanged, inexcusably overlooking the congressional statute which required
continuance of the courts and the administration of justice. This statute
was not mentioned by Mr. D. W. Howe, "The Laws and Courts of Northwest
and Indiana Territories," Ind. Hist. Soc. Publications, 2: 14-15; nor by the
editors of Secretary Gibson's "Executive Journal," 68-69, 75; nor by Mr.
J. P. Dunn, Indiana: a Redemption from Slavery (1888), 294-95. But it was
mentioned by Mr. Monks, Courts and Laicyers of Indiana, 1: 22, who re-
marks that it "gave color" to the assumption that a continuation of the
territorial statutes in general was intended.
ccocxxxiii
ILLINOIS HISTORICAL COLLECTIONS
sion respecting legal proceedings was included in the organic acts.
The same action was taken in Illinois as respects appointment and
judicial proceedings, and legislation was also based from the beginning
on the assumption of legislative continuity.16" Since legislation affect-
ing only special topics was, by unavoidable implication, "extended,"
we shall see that the governor and judges of Illinois Territory deemed
it wise to proclaim by formal resolution their opinion that legislative
continuity was in fact general. And, as just said, their own legisla-
tive activity was based on that assumption — as had been true in
Indiana. On the other hand we learn from Mr. Blume that for
slightly more than a year nothing in the laws or judicial proceedings
of Michigan Territory indicated an assumption that the laws of the
Northwest or Indiana territories were there in force.101 In September
Kin The provisions of the organic acts tor Michigan and Illinois are in
Carter, Territorial Papers, 10: 7 and 16: 7, respectively.
On April 28, 1809 Nathaniel Pope, secretary and acting governor, issued
a proclamation that the Territory should consist of two counties — Ran
dolph County "as it existed under the government of the Indiana Territory."
and St. Clair, including all to the north of Randolph — E. J. James, The
Territorial Records of Illinois (1901), 4; being Illinois State Historical
Library Publications, no. 3; pages 3-61 of that volume being the "Executive
Register, 1809-1818." On June 17. 1809 Governor Ninian Edwards appointed
clerks of the Courts of Common Pleas of the two counties, but named no new
judges to either court until Jan. 1811 — ibid. 7, 8, 17. An attorney general
was appointed July 24 — ibid. 10. Beginning on April 28 in Randolph County
and on May 3 in St. Clair he commissioned a large number of justices of the
peace — ibid. 4-11 for the year 1809. The writer has examined all of these
court records still existing; all of them are unbroken at the change of gov-
ernment. (President James's edition of the Executive Register will appear
in corrected form in vol. 17 of Dr. Carter's Territorial Papers.)
See N. W. Edwards, History of Illinois, ch. 2.
ioi Mr. Blume refers to John Gentle's statement that the governor and
judges of Michigan had in July 1805 declared the laws of Indiana Territory,
and the offices held thereunder, "null and void," which, if true, would have
explained the total absence in the Woodward Code of references to those
laws. And Mr. Blume says, "the governor and judges did not publish an
act repealing the statutes of the older territory" — W. W. Blume, Supreme
Court of Michigan Territory. 1: xxxvii, xxxviii. The cause of Gentle's
confusion seems clear. He presumably referred to the principle, adopted
in the first days of the Territory's existence, that "with respect . . . to
the Territory of Michigan." the Ordinance of 778? derived its "energy and
effect" from the congressional act of 1805 that created that Territory — Mich.
Pioneer and Hist. Soc. Collections, 8: 604. This is correct (no matter
whether one agrees or not that, therefore, all states existing in 1805 were
"original" states whose laws might be "adopted" — ante ccccviii). The Ordi-
nance was made the basis of government in one territory in 17S7, in other terri-
tories at other dates when they were created; it could not have had "energy
and effect" as to them before they existed. Totally different is the question
whether, once laws were passed (under authority of the Ordinance) for all
the Northwest Territory, they should be regarded as continuing to exist
ccccxxxiv
INTRODUCTION
1806, however, the General Court held that such was true of an
Indiana law; — in fact an enactment of the Northwest Territory that
was enforced in Indiana Territory before Michigan Territory had been
created out of the latter,162 so that the decision recognized the entire
line of inheritance. From this decision of the Michigan court cited
above one of the judges dissented, but on grounds not convincing.163
It is of more consequence that some territorial enactments of Indiana
and Illinois territories have the appearance of being inconsistent with
the principle that the legislation of the several territories was an un-
broken whole except for modifications deliberately made.164 These,
in parts of that Territory set off under separate governments (until modified
by the legislatures of the latter).
162 w. W. Blume, Supreme Court of Michigan Territory. 1: xxxv-xxxviii,
58-61; 2: 84-91. See opinion of the Attorney General of the United States
in Carter, Territorial Papers, 10 : 45. On the later expungement from Michigan
law of the statutory law of the Northwest and Indiana territories see Blume,
1: xxxix-xl.
is" Judge Bates — see citation in Philbrick, Laws of Indiana Territory
(I.H.C. 21), cv n. 1. Two arguments were based on the congressional acts
successively creating the several territories. One was that the Ordinance
established for each a "temporary" government, hence temporary laws, and
to recognize as carried over into Michigan Territory the laws of its two
mother territories would violate that intent. (This argument was urged
by the defendant in Bank of Michigan v. Williams, in the lower court — 5
Wend. (N.Y.), 478, 484; post at notecall 169.) The other was that the
future exercise of governmental authority by the Indiana Territory in the
portion thereof set off as Michigan Territory was forbidden, and that this
provision would be violated if Indiana laws were enforced therein — by the
Michigan territorial government!
There were also two arguments based on policy. One was, that the
Michigan court should not be "bound by territorial precedents" — though
no judicial decisions were involved, and only the persuasive authority of
legislative precedents; that it should "avoid the errors and profit by the
experience" of other territories — why not, then, profit here by their experi-
ence? The other was a sufficient and better "code . . . for governments so
temporary and fleeting" as those of the territories could be found in "the
Common Law" — the meaning of which, in this connection, can scarcely be
imagined.
164 Examples of a minor sort (there are few such) are instanced in Phil-
brick, Laws of Indiana Territory (I.H.C. 21), cii-ciii, cxxiii n. 5.
. Of exceeding importance, as flatly contradicting the continuity theory,
would be the supposed first "law" of Illinois Territory, if in fact it adopted
the law of Indiana Territory. Mr. Alvord, for example, in editing the Illi-
nois laws of 1809-1811, counted their total number as 35, indexed the first as
an "Adoption of the Indiana laws," and explicitly stated that the legislators'
"first act was to adopt the Indiana laws except those which were of local
character, thus making law for Illinois the code which had been evolved by
the preceding governments, that of the whole Northwest and that of Indiana"
— C. W. Alvord, Laws of the Territory of Illinois, 1809-1811 (111. State Hist.
Library Bulletin, vol. 1, no. 2, 1906), i, x, xi (italics added). Various other
writers have said the same, including Judge W. L. Gross, "History of Mu-
ccccxxxv
ILLINOIS HISTORICAL COLLECTIONS
however, are only curiosities in view of the fact of general continuity
evidenced in statute book and court proceedings.
Whatever doubts might assail one respecting the legal sufficiency
of the continuity principle, there could be no question of its superb
qualities as a matter of public policy. The adoption principle of the
Ordinance required each legislative act to be a search for, and then a
simplification of, a statute of an old society. Jefferson's plan, tested
in North Carolina, lessened the search but required the same simpli-
fication. Common sense led the legislators of the Old Northwest to
two great improvements on the Ordinance. The lesser was to treat
Kentucky, whose society their own approximated, as an "original"
state. The greater was the principle of legislative continuity, which
made simplification of a law for one territory serve for several. It
promoted the rapid development of a great body of simplified statutes,
common to several territories, throughout the Old Northwest and the
upper portion of the Louisiana Purchase. Ultimately, Congress had
the good judgment to adopt the principle in creating new territories.
So, when Wisconsin Territory was created out of Michigan Territory,
and Iowa out of Wisconsin Territory, and Minnesota out of Iowa
nicipal Law in Illinois," Illinois State Bar Association, Proceedings, 1881,
p. 89; and also the writer — Laics of Indiana Territory (I.H.C. 21), cv; but
this error was corrected in Pope's Digest, 1815 {I.H.C. 28), 1: xv-xvi. The
governor and judges merely formally recited that "after mature delibera-
tion, they hereby resolved as their opinion that the laws of Indiana Territory
of a general nature and not local to that Territory are still in force in this
Territory as they ivere previous to the first day of March last" (italics added),
on which day the existence of Illinois Territory began- — see posf 5. This
was not an enactment giving force in Illinois to the Indiana laws; it was a
formal resolution that no such enactment was necessary. There were only
thirty-four laws of the first grade of government.
What is to be said of the pronouncement of the first representative legisla-
ture which in this volume is printed as a "law" of Dec. 13, 1812? — post 51.
That instrument is in form an enactment or law. It consists of two sections.
By one section all laws of Indiana Territory in force therein on the day
Illinois Territory was severed therefrom, and which had not been repealed
by the governor and judges of the latter territory, "are hereby declared to be
in full force" until altered in the future. By the second section all laws
passed by the governor and judges for Illinois Territory are likewise "de-
clared to be in full force" until altered in the future. Now, what were
these provisions? Were they merely authoritative declarations of existing
facts (not merely a tentative opinion of fact as in 1809), or did they create
the facts by the pronouncement? Is it not perfectly clear that the Supreme
Court of the Territory must have found the facts to be as stated even if
no such instrument as this one of Dec. 13, 1812 had been in the records of
the Territory? Surely there is no difference other than irrelevancies of
form between the pronouncements of 1809 and 1812. Neither one was a
creation of law; neither one altered the law.
ccccxxxvi
INTRODUCTION
Territory, each as erected was given the laws of the parent territory
until modified by the legislature of the new.165
There had been earlier examples of this practice,106 and there
were a few also in later times — including that of Oklahoma, the
last of the continental territories.167 But it was never a basic prin-
ciple, systematically followed, of the territorial system. There were
also various acts which provided for neither extension of laws nor
preservation of suits but which did contain a provision empowering
the governor to appoint "township, district, and county officers" to
hold office until the end of the first legislative assembly — usually, in
the later period of these acts, a relatively short time ; and to lay out
"districts" for the election of members of the assembly.108 These
165 Wisconsin was given Michigan law by sec. 12 of act of April 20, 1836 —
U. S. Stat, at Large, 5: 10, 15; Iowa and Minnesota were both given Wis-
consin law by sec. 12 of laws of June 12, 1838 and of March 3, 1849 — ibid.
5: 235, 239 and 9: 403, 407 respectively. In the latter case Wisconsin law
was extended as it existed when admitted to statehood in 1848. In the
cases of all three of these territories, in addition to the extension of laws
by sec. 12 of each organic act, provision was made by sec. 15 for the preserva-
tion and final determination of all legal proceedings pending at the moment
the creation of the new territory became effective.
lee It had been tried earlier in the cases of Alabama, created out of
Mississippi Territory — sec. 2 of act of March 3, 1817, ibid. 3: 371, 372; also
in the case of Arkansas, created out of Missouri — sec. 10 of act of March 2,
1819, ibid. 3: 493, 495. In the last case only, of the five referred to in this
and the preceding note, was the extension limited to such laws as were
"applicable." Practically, of course, this was not important. The Alabama
organic act also contained the provision for preservation of judicial proceed-
ings— sec. 7, p. 373; the Arkansas act did not.
167 Oregon presented a special case; its organic act (1848) provided for
the preservation of legal proceedings initiated under its earlier "provisional
government" — sec. 17, ibid. 9: 329. Of thirteen territories later created, only
the organic act of Washington, created out of Oregon Territory, provided
for the continuance of the legislation of the parent territory (sec. 12) and
preservation of suits (sec. 15) — act of March 2, 1853, ibid. 10: 177, 178.
Arizona, created out of New Mexico, started with the latter's laws — sec. 2
of act of Feb. 24, 1863, ibid. 12: 665. Wyoming, created out of Dakota, took
her laws — sec. 17 of act of June 25, 1868, ibid. 15: 183; and various selected
Nebraska laws were for some reason given to Oklahoma Territory — sec. 11
of act of May 2, 1890, ibid. 26: 87. In the cases of Utah (1850), New Mexico
(1850), Nebraska and Kansas (1854), Colorado (1861), Nevada (1861),
Dakota (1861), Idaho (1863), and Montana (1864) there was neither provi-
sion for extension of laws nor for preservation of suits.
ir>8 This clause seems to have originated with Minnesota, sec. 7 of act
of March 3, 1849 — ibid. 9: 405. It was evidently considered by the Committee
on Territories, in one or both houses of Congress, as of basic importance,
for it was reproduced even to the number of the section in the organic
acts of eleven other territories: New Mexico, sec. 8 of act of Sept. 9, 1850 —
ibid. 9: 449; Utah, sees. 4, 7 of act of same date — -ibid. 454; Nebraska and
Kansas, sees. 7, 25 of act of May 30, 1854— ibid. 279, 286; Colorado, sec. 7
ccccxxxvii
ILLINOIS HISTORICAL COLLECTIONS
acts assume, naturally enough, a continuance of the ordinary political
subdivisions of an American state.
That Congress never adpoted as a general principle the confer-
ment on new territories of ready-made laws of older territories or
states is not particularly important. By the mid-1800 's statute books
were readily available, and it could be safely left to the first terri-
torial assembly to make the choice of models desired by its members.
That choice was usually, and naturally, the laws of an adjoining
state or territory.169
(3) The Legality of Imperfectly Adopted Laws.
It remains to consider the legal status of territorial "adopted"
statutes. This involves, on one hand, consideration of judicial de-
cisions as to the legal sufficiency or insufficiency of what was practiced
as "adoption"; — the question of congressional disapproval having
been already thoroughly considered.17" It also involves consideration
of the legal character of what the governor and judges enacted as
laws satisfying the Ordinance's adoption requirement, pending their
approval or disapproval by the courts or by Congress.
There were seemingly no decisions by the territorial courts on
the sufficiency of the legislative procedure. All the judges being
legislators — and a majority of them being almost always parties to
the enactment of each law — it would scarcely have been worth while
to try the question before them. As a matter of fact there seems to
be no evidence that any reputable lawyer, without financial interest
and beyond the influences of local politics, would have counseled a
contest of their validity.171 But the legality of some statutes was ulti-
mately challenged in state courts, and all the actions of the legislators
of act of Feb. 28. 1861— ibid. 12: 174; Nevada, sec. 7 of act of March 2, 1861—
ibid. 212; Dakota, sec. 7 of act of March 2, 1861— ibid. 241; Idaho, sec. 7
of act of March 3, 1863 — ibid. 811; Montana, sec. 7 of act of May 26. 1864—
ibid. 13: 88; Wyoming, sec. 7 of act of June 25, 1869 — ibid. 15: 180; Okla-
homa, sec. 7 of act of May 2, 1890 — ibid. 26: 85. It was not, however, present
in the organic act of Oregon — in which, presumably, the matter was pro-
vided for by acts of the foregoing "provisional government" — ibid. 9: 323:
nor in the acts for Washington (ibid. 10: 172) and Arizona (ibid. 12: 664).
i6s Compare F. N. Thorpe, A Constitutional History of the American
People, 2: 400-401 and index s.v. "Constitutional Conventions — Membership
and Personnel."
170 Ante ccccxxi seq.
i7i See quotation from Jacob Burnet, post n. 182.
ccccxxxviii
INTRODUCTION
were held to have been legal and effective. The governor and judges
of Michigan Territory, for example, chartered in 1817 a bank under
a law which purported to have been adopted.172 from New York, Ohio,
and Massachusetts. A part of the statute was taken from each, and
no one of the adopted laws was adopted in toto ; Ohio was not a
state in 1787 ; the pertinent laws of New York and Massachusetts
were passed after 1787 ; many changes had been made in the verbiage
of the laws adopted. A New York court, in an action on a promissory
note payable to the bank, held that it was indeed a corporation
legally created, and could maintain the action.173 This case covered
nearly all the irregularities which had caused anguish to Governor
St. Clair and the enemies of Winthrop Sargent. The decision rested
on the conclusion that the adoption requirement "was designed to
secure to the people of the territories ... a system of laws, each of
which had been tried and approved of by the people of some one of
the states " ; or as another of the judges said, the purpose was to put the
territorial government "under all the limitations imposed on the
original states, contained in the constitution of the U. States, without
enumerating them." And those would be satisfied by requiring
merely that "the subject of enactment by the original states must be
adopted."174
"2 The usual adoption formula in Michigan laws was substantially this:
"the same being adopted from the laws of [or: from (number) of
the original states, to-wit the states of ] as far as necessary and suit-
able to the circumstances of the territory of Michigan."
its Bank of Michigan v. Williams (1830), 5 Wend. (N.Y.) 478 — par-
ticularly at 546-47, 550-52, and post ccccxlii seq.
In 1806 a Bank of Detroit had been incorporated for 101 years, with
a capitalization of $1,000,000. This law was disapproved by Congress on
March 3, 1807- — Z7. 8. Stat, at Large, 2: 444. There is a letter from Judge
Woodward regarding this earlier bank from which it appears that he aimed
to overcome one special objection to territorial incorporation by the argu-
ment that it was "well understood that this act is at any time repealible
at the pleasure of the legislative power of the United States," and he enclosed
to the Secretary of State two suggested drafts of laws which Congress might
enact — one making the Michigan act, alone, repealable, the other making all
territorial incorporation acts repealable — letter of Jan. 31, 1807, Mich. Pioneer
and Hist. Soc. Collections, 31: 589, 591. See post ccccxliii. On the power
to incorporate he wrote: "If it is thought, in that medley of opinion which
exists relative to the powers of territorial governments . . . that this gov-
ernment has not a poicer of adopting laws of this description, I am . . .
silent" — ibid. 588.
174 Judge Sutherland in the Supreme Court, 5 Wend. (N.Y.) 485;
Senator Beardsley in the Court for Correction of Errors, 7 ibid. 557; and
Senator Allen in the same, ibid. 546.
In my introduction to The Laws of Indiana Territory (I.H.C. 21), I
coccxxxix
ILLINOIS HISTORICAL COLLECTIONS
As respects the legal status of laws adopted by the governor and
judges, the Ordinance provided that they should "be in force . . .
until the organization of the general assembly therein, unless dis-
approved by Congress." The word "disapproved" was always in-
terpreted to mean "annulled."17"' The Ordinance was merely "ex-
tended" to the Southwest and Mississippi territories, but the act
organizing Orleans Territory and the District of Louisiana was origi-
nal legislation and in that the phrases used were: "if disap-
proved of by Congress, shall thenceforth be of no force,"
and "shall thenceforth cease, and be of no effect."176 And so of
the second act relating to the Louisiana (Missouri) Territory.177
It will also be remembered that because of the positive form of the
Ordinance's provision it was felt necessary to provide specifically
that the governor and judges might repeal their enactments178 —
still leaving alterations by amendment to implication.1 7!l And we have
also seen that although St. Clair and a few other responsible persons
remarked of the law of 1795 by which the English law was purportedly
adopted as the basic law of the Northwest Territory, that if for the reasons
earlier stated (ante n. 77) that law was invalid, the point would be "of
little moment, for there were various other state statutes adoptive of the
English law that could have been chosen" for the same purpose — ibid. ci.
This of course rests on the liberal principles adopted by the New York
judges. The subject matter had been approved by various states, and the
law was not in conflict with the political purposes of the Confederation, ap-
proved by the new Union. But I would be quite willing to state my view as
Mr. Blume interpreted it: "If the governor and judges in attempting to
adopt a law that did not exist, happened to adopt one that did exist, their
act was valid." And I am gratified by Mr. Blume's concurrence— Supreme
Court of Michigan Territory, 1: xv. The New York judges held that laws
adopted need not have been in existence in 1787. In dictum, however, some
of the judges went further than my proposition. Assuming that the law
adopted must have been in force in 1787, Senator Allen said there was then
New York's Bank of North America, and the law creating that (1787) au-
thorized the subject matter of the Michigan act — 7 Wend. (N.Y.) at 547.
Senator Beardsley was also seemingly of the same opinion, since banks
existed in 1787 in Massachusetts, Pennsylvania, and Delaware, in addition
to the Bank of America — ibid, at 550, 552.
i"s One curious disregard of this fact is pointed out in Philbrick, Laics
of Indiana Territory (I.H.C. 21), civ n. 2.
i7.e Sees. 4 and 12 of the act of March 26, 1804 — Carter, Territorial Papers.
9: 204, 211. The act of March 2, 1805 ended such legislation in Orleans
Territory — ibid. 40G.
1" Act of March 3, 1805— ibid. 13: 93.
178 Ante at notecall 86.
179 One obscure passage in Judge Woodward's statement of the Michigan
procedure to the Secretary of State in 1806 (ante n. 73) may be an argument
that a power to repeal included a power to amend — Mich. Pioneer and Hist.
Soc. Collections. 31: 563. It seems easy to imply the power independently.
ccccxl
INTRODUCTION
doubted the legality of many territorial laws,180 and various persons
for political purposes charged their illegality, no nonterritorial
court before which the question came ever countenanced that view.
Congress annulled only two laws in early days.181 Is there any
reason whatever to regard any law not annulled as other than en-
tirely valid? No approval by Congress was required to make the
enactments of the governor and judges law ; there was no provision
for the approval or assent of Congress ; to assume the necessity of such
action or even its possibility is to alter completely the legal situation.
The Ordinance provided only that a disapproval of territorial laws
should annul them. Even if the Ordinance had not thus, by plain
implication, recognized them as existing laws, they would neverthe-
less— as the actions of regularly constituted authorities — have been
entitled to recognition and enforcement as such until annulled by
Congress or by a court of competent jurisdiction. But no annulment
of them by conclusive judicial decision that they were unconstitu-
tional— as violating the congressional statute which was in effect
the territorial constitution — could have been effected by other than
a suit in a federal court and appeal to the federal Supreme Court (to
which no appeal lay from the territorial court), and no such suit was
ever brought.
Various historians have said, in the following or equivalent words,
that "since these measures were not formally disallowed by Con-
gress"— since Congress "merely withheld their assent, without ex-
pressing an actual dissent" — the laws were "enforced" or "treated"
as or "as if" constitutional and valid. Probably all these state-
ments are in part an echo of Judge Burnet, who gave as one reason
why the legality of the adoption procedure was never tested in court,
that "Congress had merely withheld their assent, without expressing
actual dissent."182
180 Edmund Randolph is the only other person whose position (seem-
ingly clear of politics) has been noted by me.
isi One from the Northwest Territory — ante at notecall 86; none from
the Mississippi Territory — ante at notecalls 87, 88 and following notecall
129; one from Michigan Territory — ante n. 173.
182 "According to their" — the legislators' — "construction [of "adoption"]
. . . the limitation imposed on their discretion was entirely useless. The
propriety of their course was frequently questioned by the bar, and a dis-
position existed to test it. No attempt, however, was made for that purpose,
in consequence, probably, of the fact that Congress had merely withheld
their assent, and that as the validity of the laws be decided by the same
ccccxli
ILLINOIS HISTORICAL COLLECTIONS
In addition to that irrelevance — and, indeed, coming from a
lawyer, absurdity — all such comments as those above assume that
the word "adopt" had precise and narrow meaning. That the
history of the Ordinance gives no support for such an assumption
seems clear.183 That no justification for it can be found in the politi-
cal situation of the territories is much clearer. A literal construction
of the word, everybody everywhere agreed, would have made any
legislation utterly impossible. The only question is, therefore, whether
after limiting the legislators ' discretion by requiring them to ' ' adopt
it was either feasible or desirable further to limit their discretion.
It seems likely that to a reader who ponders the liberties taken by
the legislators with model statutes only one is likely to appear exces-
sive ; namely the borrowing of but a small — sometimes an exceedingly
small — part of the original statute. Yet this would not have been
done if it could have been avoided ; it was obviously done only because
of the particular importance and rarity of what was taken. No me-
chanical test of its reasonableness is possible ; only a political test
can properly be applied.
The test applied by the Michigan legislators in 1806184 and by
the New York court in 1830 was political and identical : that what-
ever be adopted must be consistent with republican constitutional
principles, and therefore must have been approved by a state or
states of the Union. A great amount of evidence discussed in a pre-
ceding section of this introduction strongly supports the conclusion
that such was in truth the intent of the Ordinance's framers.18'"' Its
requirement was that the governor and judges should "adopt . . . such
laws of the original states as may be necessary and best suited to the
circumstances of" the Territory. The interpretation of this provi-
sion, whether by the New York court or by historians, called for a
reasonable judgment upon precisely the same facts. That historians
have uniformly expressed a judgment contrary to the court's is doubt-
men who passed them, the hope of a successful result was too weak to justify
the undertaking" — Jacob Burnet, Notes on the Early Settlement of the
North-Western Territory, 64. Mr. Burnet, a very active and prominent
practitioner in these early years, was later a member of the Supreme Court
of Ohio.
183 Ante cccc-ccccii.
1S4 Ante at notecall 79.
iss In order to fall within the general objectives of the framers— ante
ccxciv-vi, cccxxiv-vii.
ccccxlii
INTEODUCTION
less due to their freedom from the court's sense of responsibility in
appraising the facts.180 But the writer 's view is that, aside from such
considerations, there was full justification for the acts of the legis-
lators who, in the words of the Michigan formula, adopted "from
the laws of the original states . . . as far as necessary and suitable to
the circumstances of the territory. ' '
When the first grade of territorial government ended, the adop-
tion clause and the reference to disapproval by Congress disap-
peared.187 That, however, made no difference whatever in the status
of territorial enactments or the power of Congress. In omitting the
adoption clause from the District of Louisiana act of 1804 Congress
retained the provision that the territorial laws if disapproved by
Congress should "thenceforth cease, and be of no effect." It also
provided that no law should be valid if inconsistent with the Consti-
tution "and" (i.e. or) laws of the United States.188 But although
these two provisions were often repeated in later laws creating other
territories it was, of course, quite unnecessary to state them. With or
without either or both of those provisions, the situation was always
quite the same.
With that fact in mind let us now return to the idea that Con-
gress might have "assented" to the laws. Had the Confederation
continued, the sovereign states could, through Congress by special
action, have done that in the sense of making the assent a compact,
186 The court had before it a promissory note. It was necessarily con-
scious that title to vast amounts of property, the legality of public records,
the legitimacy of every marriage in the Territory, and of every act of its
township and county officials, depended on its laws. No court would upset
the entire social structure of a community by a narrow interpretation of
one word in a grant of legislative power. As already remarked (ante n. 107
and n. 91) it is extraordinary that Governor St. Clair did not feel more
strongly that responsibility. There is no evidence that Edmund Randolph
publicly questioned the validity of the laws when attorney general or when
secretary of state (ante n. 91). There is no evidence known to me that St.
Clair did so; but he did agitate the matter officially, and it is easily possible
that his views became known in Congress. Of course the essential facts
were known in the Territory after publication of the legislative journal of
1795 (ante ccccxvi). Republican politicians there or in Congress would have
been quick to welcome such Federalist support.
is7 it recurred in the organic acts of Minnesota (1849) — U. S. Stat, at
Large, 9: 405 (sec. 6); Utah and New Mexico (1850) — ibid. 455 (sec. 6),
449 (sec. 7); and Washington (1853) — ibid. 10: 175 (sec. 6). This was its
last appearance.
I*8 Sec. 12 — Carter, Territorial Papers. 9: 210. It was also in sec. 4,
with reference to the Territory of Orleans, for one year.
ccccxliii
ILLINOIS HISTORICAL COLLECTIONS
positively final. Under the present Constitution there would seem to
be no possibility of doing that. We have seen in an earlier section of
this introduction the utter emptiness of the idea that the Ordinance
contained any provision of force above that of ordinary legislation.180
Congress did b,y that enactment declare rights which the territorial
government could not deny or abridge, but Congress could have with-
drawn or amended those rights at any moment under its absolute
constitutional power to make rules and regulations for the territories.
They are subject to the sovereignty of the Union, and Congress cannot
by any act qualify that power — which normally would (and possibly
must) be exercised through the legislative department.
There would therefore seem to be nothing defensible in the idea
that a territorial law could somehow and at some time acquire a final
validity by a failure of Congress to disapprove it. It is true that
Chancellor Walworth, in joining in the affirmance by the Court for
Correction of Errors of the lower court's decision in Bank of Michigan
v. Williams, gave as a reason for so doing the fact that Congress had
for fourteen years failed to disapprove the law. That he regarded
this, however, as merely evidence that Congress was unlikely to annul
the law — not that the law had become irrevocable — is plain from his
second reason for affirmance ; namely, that a judicial pronouncement
of the law's invalidity by a state court would be futile because it
would not bind the territorial court.190 It is also true that Chief
Justice Chase, in dealing in 1871 with a Utah law of 1859, declared
that "the law has received the implied sanction of Congress"; and
he gave other good reasons, of a historical nature, for a belief that
acts of the general nature of the Utah act had over a course of many
years been approved, tacitly, by Congress.191 Had this meant only
what was literally said — namely, that Congress had seemingly "ap-
proved" for twelve years of the law; or even if it meant that Con-
gress had actually approved of the law, for twelve or any other term
of years — it might be true, but it would be unimportant. But when
understood, as Chief Justice Chase employed it, as a bar to a sub-
sequent judicial pronouncement of the law's unconstitutionality for to
congressional invalidation), it was unsound. It seems clear from
1811 Ante, Section III, passim.
ioo Williams v Bank of Michigan U831), 7 Wend. (N.Y.) 539, 543-44.
193 Clinton v. Englebrecht (1871), 80 U.S. (13 Wall.) 434, 445-46.
ccccxliv
INTRODUCTION
later cases that the Supreme Court supports the view that the United
States cannot be bound by the inaction or misjudgment of Congress
in failing to disapprove a territorial law, although its attitude may
possibly be recognized as creating equities that will affect the discre-
tionary exercise of the sovereign power later to annul laws, or to
prohibit or restrict legislation upon particular subjects.19-
Before the Civil War the power of annulling laws was exercised
in only a very few cases of acts incorporating institutions with bank-
ing privileges.192 In the same period a prohibition of such corpora-
tion laws, and of borrowing money on public credit were imposed
upon three territories.104 During and after the Civil War some terri-
tories were allowed to expend money only for purposes approved and
within sums appropriated by Congress.19"' General statutes pro-
hibited the granting by territories of private charters or especial
privileges, and restricted the fields within which general corporation
laws were permitted.190 It is also a curious fact that during this
period there were various cases in which Congress explicitly ratified,
or validated defective territorial laws.197 In the single case of Utah
was the absolute power of Congress fully displayed — in annulling
various laws, and in subjecting to complete national control the valida-
tion of marriages, the laws of inheritance, the administration of the
ii»^ Particularly Springer v. Government of the Philippine Islands (1928),
277 U.S. 189, 209. Mr. Blume has discussed these cases; see his Supreme
Court of Michigan Territory. 1: xxx-xxxi. In Judge Cooley's work — T. M.
Cooley, A Treatise on the Constitutional Limitations Which Rest upon the
Legislative Power of the States of the American Union (6th ed. 1890), 37 n.
1 — he cited the older cases (of which only Williams v. Bank of Michigan
involved an "adoption" statute) under the head: "Power to legislate as-
sumed, if suffered to remain without disapproval for years."
193 Three laws of Florida, annulled by an act of 1836 — see M. Farrand,
Legislation for the Territories, 41.
194 On Florida by the act just cited; on Oregon and Washington by their
organic acts of 1848 and 1853 respectively — ibid. 42-43. An indirect control
over legislative activity was imposed by a law of 1842 limiting the costs of
any legislative session to the sum appropriated therefor by Congress — ibid. 42.
195 Idaho and Montana — ibid. 79, 78.
iss Ibid. 47-79. In this period indirect control of territorial legislation
was exercised to a greater extent than in the earlier period by statutes
limiting the length of legislative sessions in all territories, limiting the cost
of printing bills, fixing the compensation of members and officers of the
legislature, and forbidding extraordinary sessions unless reasons for them
were approved by the president — ibid. 46-47.
197 Acts of the Territory of New Mexico creating a county and another
for issuing bonds; laws of Dakota Territory incorporating insurance com-
panies; and ten laws of Washington Territory — ibid. 88, 89, 90.
ccccxlv
ILLINOIS HISTORICAL COLLECTIONS
probate courts, qualifications for voting and holding office, the pro-
cedures of registration of electors, and elections.1'1" It is really only
in the incidents of the Utah case that one can discern any justification
for the absolute powers given Congress over the territories. In all
other cases one sees at most a steadying hand in minor governmental
ills.
The Legislative Quorum and Majority.
The original journal of Congress showed the final text of the
Ordinance as reading: "The governor, and judges or a majority of
them shall adopt . . . laws." But the official printed copies which
were first used in the Northwest Territory read : ' ' The governor and
judges, or a majority of them, shall adopt . . . laws." And, what
is more, Dr. Carter tells us that "the printed texts of the ordinance
from 1787 to the present time have universally followed the version
of the first official printed copy."199 So, for example, despite the
controversies between Governor St. Clair and the first judges of the
Northwest Territory, settled in his favor by Secretary Charles Thom-
son's report on the correct reading of the original journal of Con-
gress,20" the Ordinance as republished in the laws of the Territory
always repeated the false reading.-"1 And Dr. Carter's statement
would justify a conclusion that if the same problems arose in other
territories either an erroneous course was followed, based on the false
printing, or if a correct course was adopted — as it probably always
was in theory, though a governor might choose not to assert his legal
rights on all occasions — this was contradictory of the law as known
to the public.202 And since there would be under either supposition
an undesirable situation, this is another case in which it would seem
that the federal administration should have acted to prevent misun-
derstandings.
los/fticf. 49, 90, 92.
199 Carter, Territorial Papers. 2: 42 n. 14.
-oo Letter of March 11, 1789— ibid. 190.
201 For example, in the Northwest Territory in 1796 with laws of 1795,
and again with laws of 1799 — T. C. Pease, Laws of the Northwest Territory
(I.H.C. 17), 124, 522.
202 "That the Journal itself may have been in error is not impossible,
since in all the drafts from that of April 26, 1787, the punctuation is the
same as found in the official printed copy issued after final passage. . . .
Nevertheless the Journal is the final authority; we cannot go behind it" —
Carter, as in n. 199 above.
ccccxlvi
INTRODUCTION
Assuming the correct reading of the original journal, it would
logically follow that the governor must always concur in the passage
of a law. From this, two conclusions would follow : one, that he
therefore had a veto, when present ; the other, that no matter what
the number of judges present there could be no legislative quorum
without his presence. The first of these conclusions was not accepted
with unanimity in the different territories. The second was not acted
on at all in the one territory where the quorum problem seems to
have been important. The two matters may be considered separately.
The quorum problem led in Michigan to collisions between the
executive and judicial departments which were of most serious nature,
and to a paralysis of territorial administration hardly to be paral-
leled in any other territory. Long after the troubles between Governor
Hull and the Chief Judge, Augustus B. Woodward, had begun — in-
deed, when they were at their climax of bitterness — the latter bridled
at a notice of a legislative meeting sent by the Governor and signed by
him : ' ' President of the Legislative Board. ' ' In his reply he conceded
to the Governor no superior voice whatever and no right even to
preside, though willing to concede the practice of presiding as a
matter of courtesy. At the same time, reasoning from the official
printed version of the Ordinance, he wrote (1810) : "They, or a major-
ity of them, shall adopt laws. . . . They are not made a body, they have
no speaker, there is no definition of a quorum. The majority required
is not a majority of those present, but a majority of the whole. Three
signatures therefore, or the assent, in some shape, of three persons
becomes indispensable ... to any provision which is ... to have the
obligation of a law."203 However, in 1806 Judge Woodward had
reported to the Secretary of State that the Michigan legislators in-
terpreted the Ordinance as creating "a kind of legislative board,
composed of the Governor and the three Judges, any three of whom
form a quorum, and of which quorum the votes of any two determine
a question."204 Now, it happened that in the so-called "Woodward's
Code" of 1805-1806 there had been at least three "laws" that in fact
satisfied only the second rule stated by him ; being actually approved
by only the Governor and one judge, or by two judges only, of the
203 Letter of July 23, 1810 to Hull— ibid. 10: 321.
204 Letter of Mav 8, 1806— Mich. Pioneer and Hist. Soc. Collections. 31:
562.
ccccxlvii
ILLINOIS HISTORICAL COLLECTIONS
three persons present.205 That is, he had in fact joined in giving to
some laws in his Code the appearance of actual approval by three of
the legislative "quartette" (if we avoid the words "legislature,"
"body," and "board" as Judge Woodward insisted — in 1810), when
in fact only two approved. But the possibility of this was all he
objected to in the Witherell Code. It could make no difference that
the two judges were the only judges in service, for the Ordinance said
nothing of vacancies and required a majority of four persons under
the postulated printing (and would have required a majority of three
judges under the true reading of the journal). However the fact that
the laws were signed by three legislators would have caused approval
by the signers to be conclusively presumed in all ordinary cases ; that
is, in cases in which validity of the law was not contested on the very
ground of the lack of actual approval. At law, therefore, in all ordi-
nary cases, the rule first stated would seem also to be satisfied, and
the inconsistency between the two rules was evaded.
In the four years between the pronouncement of the two rules
much had happened. In November 1808, when Judge Woodward
was not in Michigan, an act was passed which declared the rule as
stated by him in 1806, and then provided that in case of approval by
either three of the four legislators, or by two in a quorum of three,
the act should be signed by the officer presiding at the time of pas-
sage and attested by the secretary of the Territory.206 This and some
forty other acts were authenticated by the signatures of the governor
and secretary, with nothing to indicate which meaning of "majority"
was satisfied in any particular case. They were all passed before
Judge Woodward returned to the Territory, and many of the laws in
the Woodward Code were repealed by them. After his return the
validity of laws in this "Witherell Code" was tested in a series of
nine cases.207 At least two were held prima facie valid when it hap-
-'os ibid. 563. •
206 Nov. 9, 1808 — quoted by Judge Woodward, W. W. Blume, Supreme
Court of Michigan Territory. 1: 514-15. Note the law ended with the usual
formula of adoption: "the Same being adopted from one of the original
States, to wit, the State of Vermont, So far as necessary and Suitable to
the Circonstances of the territory of Michigan"; — although (1) surely, if
those ivords were found they could not have referred in the Vermont law
to a legislature, and (2) Vermont was not really an original state. The
laws of the "Witherell Code" were passed between Nov. 9, 1808 and Feb.
26, 1809 — compare Mich. Pioneer and Hist. Soc. Collections, 8: 593, 12: 613.
2"7 See Mr. Blume's citations — W. W. Blume, Supreme Court of Michigan
Territory. 1: 165; also, xxv-xxvii.
ccccxlviii
INTRODUCTION
pened that they were supportable by a model law from an original
state. But it was held that some of the laws were invalid; and in
one that the parent law was void because no law of an original state
from which it could have been adopted actually existed, and because
it purported to effect "an essential change in the ordinance." In
dictum the Court also declared that all the other laws authenticated
under the authority of that law were void.208 This insistence by the
Supreme Court upon the continuing validity of laws ostensibly re-
pealed by the Code for which Governor Hull was responsible neces-
sarily created great confusion in the public mind — and presumably
rage in the Governor. In consequence, he issued a proclamation in
which he proclaimed "to the people of this Territory" that no power
on earth — save the Congress, which had reserved the right — had
power to invalidate laws adopted and passed bty the governor and
judges ; denounced the Supreme Court for its impropriety in charac-
terizing as invalid laws whose validity was not directly in question
in the proceedings before it ; and then, as a climax, called upon
every officer, "civil and military" of the Territory "to be vigilant
in enforcing the laws," and upon "all good citizens to be firm and
unanimous in obeying them." Forgetful of his criticism of the
Court's action, the Governor — though not a higher court — -also de-
clared the Court's decisions nullities.209 Not long after this Judge
Woodward issued a mandamus ordering the judge of an inferior
court to probate a bill under a law of the Woodward Code which
had purportedly been repealed by a law of the Witherell Code. The
judge appeared and answered that he would rather die than obey.210
Judge Woodward accused Governor Hull, because of the reference
to the military in his proclamation, of threatening forceful compul-
sion of the Court. He refused to attend legislative sessions (of
which, because of these disputes between the Hull and the Wood-
ward partisans, there were none for nearly a year and a half) unless
the Governor "annulled" his proclamation and a return was made
to "the legitimate course of government," altered by the act of
208McGarvin v. Wilson (1809).. ibid. 180-82 and statement of its prin-
ciple, 515.
209 iud. 2: 286-87.
210 in the matter of Sibley and Hoffman, Executors (1810) — ibid. 1:
189-90 and citations there given, especially 513-17, 518; also 2: 299. Judge
Woodward comments on this case and that cited ante n. 208 in the letter
cited in n. 211.
ccccxlix
ILLINOIS HISTORICAL. COLLECTIONS
November 1808. 211 This last really called for no more than a repeal
of that law respecting the legislative quorum, majority, and mode
of authenticating laws. That parent law of the Withered Code was.
accordingly, first repealed, and after a fortnight Governor Hull
joined in a repeal of all the other laws similarly authenticated. On
the same day the district courts were abolished, thus breaking the
deadlock between the Supreme Court and the district judge who had
defied its authority and at the same time it was declared that the
jurisdiction of that Court should extend to the probating of wills.212
According^, the particular will over the probate of which the con-
flict had arisen was probated a few days later in the Supreme
Court.213 As Professor Blume says, "Here again, the governor and
judges failed to realize" — or did they not, perhaps, merely ignore
the fact? — "that they had no power to enlarge the jurisdiction of
the court created by Congress."211
It is obvious that the immediate and the primary cause of these
fantastic and deplorable dissensions lay in the temperaments of the
territorial officials — of the weak as well as the strong. In other
territories there were judicial characters even more extraordinary in
some ways than Judge Woodward, but perhaps there was none whose
battle-fire was so much of principle and so little of personal passion,
and none who combined such imagination and acuity in producing
theories to entangle his opponents.
It is not intended to suggest that the Ordinance is open to
criticism because not drafted with the phenomenal care that would
have been required in order to exclude variant interpretations of
its provision. It is only intended to make clear that here again the
Ordinance merits no praise as a production of super-legislation.
The Governor's Powers of Veto and Prorogation.
It has already been mentioned that the Ordinance as recorded
in the original journal of Congress gave legislative power to "the
^11 Letter of Judge Woodward to Governor Hull, July 23, 1810— Mich.
Pioneer and Hist. Soc. Collections. 36: 363-68.
-is See ibid. 8: 612-15 and 36: 368 n. 24.
213 A very imperfect law of the Witherell Code which had created the
district courts was one of those that had earlier been pronounced invalid by
the Supreme Court. W. W. Blume, Supreme Court of Michigan Territory.
1: xxvii, lii-liii, 190, 539-40.
2« Ibid- liii.
ccccl
INTRODUCTION
governor, and judges or a majority of them" — which reading, since
it required the governor to be always a party to legislative action,
gave him a power to block any action by refusing to concur in, or
by mere abstention from joining in, action by the judges. And
although the printed copies supplied by the government to the officers
of the Northwest Territory read quite differently — namely: "the
governor and judges, or a majority of them"21"' — Governor St.
Clair always interpreted that phraseology, also, as meaning "the
governor and any two of the judges."-10
Whether this power to thwart action should be called a power
to "veto" legislation depends on the meaning that should be given
to that word. It habitually implies action by a legislature that is an
independent body, which action, being .submitted to the executive, he
either approves or refuses to approve it, giving his reasons in case of
disapproval. Certainly the situation under the Ordinance did not exact-
ly fit this description. Yet, as a matter of practical fact the use of the
word "veto" seems permissible. Governor St. Clair may at first
have expected the judges to act first, and submit to him the result
of their labors,217 — which was the form in which Jefferson would have
preferred to provide for legislation in the Territory of Orleans ;218
but the facts that few laws were available for consultation except
those of Pennsylvania, and that he was very familiar with then-
operation, would naturally have led to the practice of sitting with
the judges.219 This seems to have been the general practice.22" St.
Clair's practice of sending the judges "veto" messages, or letters
213 See ante ccccxlvi.
216 Letter to the judges, Aug. 2, 1788 — Carter, Territorial Papers, 3 : 274-
75; letter to the President, Aug. 1789— ibid. 2: 206-7. In this last letter
he remai'ked that if the judges had "attempted to establish" their construc-
tion (that is, doubtless, by promulgating a law in which he had not con-
curred) he "would have thought himself bound in Duty to have forbid
Obedience by Proclamation until the Sense of Congress on the matter could
be known, and the utmost Confusion must have ensued." See ante at note-
call 209 for what actually happened in Michigan Territory in a case some-
what similar.
-'it Compare ibid. 2: 207 at bottom, 3: 268, 272.
sis Ante n. 142.
2i9 The journal of the sessions of 1795 shows this — ante nn. 100, 98.
220 Sargent so sat as acting governor in the Northwest Territory and
governor of Mississippi Territory; Governor Hull of Michigan sat as "Presi-
dent of the Legislative Board," and Judge Woodward conceded the position
as a matter of courtesy — ante ccccxlvii. Almost certainly it was everywhere
the practice.
ccccli
ILLINOIS HISTORICAL COLLECTIONS
refusing to join in the adoption of particular laws,221 was presum-
ably adhered to only in the period before actual sittings with the
judges became his practice.
The judges were, of course, never ready to accept the governor's
claim of a veto.222 As they said, a veto was not mentioned in the
Ordinance, and its words — be the punctuation as it might — could not
be stronger in putting the parties on an equality. That, too, was
the attitude of all parties in Michigan where no veto power was
claimed.223 William Henry Harrison, as governor of Indiana Terri-
tory, seems to have abstained completely from asserting a veto
power during the period of government of the first stage.224 In Illi-
nois Territory, also, there seem to have been no "vetoes" until after
introduction of representative government, presumably because
difficulties were either removed by discussion in legislative sessions or
legislation abandoned when opinions were irreconcilable. It aroused,
however, extreme resentment in the second stage of government.225
22i Carter, Territorial Papers, 3: 266, 268 (reasons for refusing to join
in adopting a law sent to him by the judges), 270; note also form of Acting
Governor Sargent's action in 1790 — ibid. 2: 304. It seems reasonable to
assume that the absence of such messages in the volumes devoted to other
territories has the same explanation.
222 Compare St. Clair's report of their attitude in 1789 — ante n. 216
with Sargent's report in 1793 of the attitude of later-named judges — ibid.
3: 400; also with the remarks by Judges Symmes and Turner in their reply
to St. Clair's remarks in opening the legislative session of 1795 — W. H.
Smith, St. Clair Papers. 2: 365.
223 "in the Territory of Michigan the construction has been unanimous.
that . . . the Governor is a component member of the legislative board . . .
but that the other members may act without the Governor, and that their
vote [may] carry a question against the [non-] concurrence of the Governor.
On this account the laws are clothed with the signature of all the members
of the government, whether unanimously passed or not" — letter of Judge
A. B. Woodward to Secretary Madison, May 8, 1806 — Mich. Pioneer and
Hist. Soc. Collections. 8: 562.
224 But he had serious difficulty with it later, despite his tact for some
years in avoiding any issue on the point with the General Assembly —
Philbrick, Laics of Indiana Territory (I.H.C. 21), xxix-xxx; Carter, Terri-
torial Papers. 8: 154. Governor Claiborne of Orleans Territory was similarly
chary of exercising his veto power — ibid. 9: 642, 779.
225 in the Illinois State Archives there are loose papers concerning
vetoes of the sessions of 1812, 1813, and 1814. One of those of 1814 (Dec.
21) is in the Record of the Council of Revision, vol. 1 (1809-1845)— MS, and
if there were vetoes of 1815-1818 they are presumably there recorded, though
my notes do not show this. A legislative memorial of 1S13, forwarded to
the President by Governor Edwards, was not found by Dr. Carter — Terri-
torial Papers. 16: 378. A proposed memorial of 1814 was very strong in
its denunciation of the veto power and the illiberalities of territorial gov-
ernment, but it was rejected, Dec. 13. 1814 — Journal of the House of Rep-
resentatives (MS), 53, 8i, 111.
cccclii
INTRODUCTION
In the Louisiana-Missouri Territory the differences between Gov-
ernor Wilkinson and the judges over the veto issue paralyzed legis-
lative activity in the first stage of government, and bills were intro-
duced in Congress to deal with the difficulties that had arisen there.226
It was sometimes alleged in popular petitions (and has been
later repeated), that under the first stage of government there had
been no veto, whereas under the second stage the voice of the repre-
sentative legislature was subject to an absolute veto. This seeming
paradox had, manifestly, no sound basis in fact.
We are here concerned with the obscurity of the Ordinance re-
specting the veto during the period of nonrepresentative govern-
ment. That its existence or nonexistence was left to arguments over
punctuation, and that the basis of affirmative argument required
one to ignore a mistake of the secretary of Congress in copying its
records, is another example of the Ordinance's egregious imper-
fections.
The worst thing about the governor's absolute veto was, how-
ever, that it was carried over into the stage of representative govern-
ment. Here again the Ordinance displayed its total break with the
Revolutionary tradition — which, in a majority of the state constitu-
tions of the time, wholly deprived the governor of a veto on legisla-
tion. In this respect, therefore, the Ordinance anticipated the tempo-
rary reaction which was soon to set in against extreme post-Revolu-
tion radicalism. But that reaction in the states, where the people
controlled, was only brief, whereas fifty years were to pass before
the movement began to establish in the territories a qualified veto
such as a minority of the state constitutions of the Revolutionary
period had established.227
The governor's power of prorogation, since it related solely to
government of the second stage, and was explicitly stated, also calls
2^e Carter, Territorial Papers. 13: 270, 271. Note the wording of the
act of March 3, 1805 — "The legislative power shall be vested in the governor,
and in three judges or a majority of them" — ibid. 93. Senator Worthing-
ton's bill of 1806 was intended, by compromises, to settle disputes both in
the District of Louisiana and (ante ccccxlvii seq. ) in Michigan — ibid. 420
227 By an act of March 3, 1839 the veto in Iowa and Wisconsin was made
subject to being overridden by an adverse vote of two-thirds of each house —
U. 8: Stat, at Large. 5: 356. There had been occasional demands for such
a rule since early days; the main objection to the veto, that it defeated
popular desires, perhaps implied a petition for a qualified veto — compare,
for example, Carter, Territorial Papers, 2: 502, 548.
ccccliii
ILLINOIS HISTORICAL COLLECTIONS
for no particular comment here. It was sometimes a power much
needed, as when circumstances made a meeting of the legislature at
the appointed time impossible or highly undesirable,228 but was also
at times used for political reasons, or as a weapon in factional strug-
gles in a territory. In Mississippi, where the most serious difficul-
ties arose, the violence of factional feeling against the governor
coupled with a series of prorogations and dissolutions of the Gen-
eral Assembly, virtually deprived the Territory of effective govern-
ment for nearly a year and a half.229 Whatever the purpose of its
228 Examples probably of this type are three prorogations by Governor
Blount of the Southwest Territory— ibid. 4: 330, 462, 467 n. 82; one by
Governor Claiborne in Orleans Territory — ibid. 9: 446; one by Governor
Holmes in Mississippi Territory — ibid. 6: 399. Governor Claiborne, in an-
other case, prorogued the legislature because a term of his governorship was
to expire and he assumed either that this would terminate lawful action by
the legislature or lawful co-operation by him with it in legislation — see ibid.
9: 457. Secretary Madison's opinion was negative on the former point, but
he gave no opinion on the latter — ibid. 496. A similar case in Mississippi
Territory is referred to in the next note.
220 in 1805 the Mississippi legislature sat for more than three months
in making nominations for the Legislative Council and electing a delegate
to Congress. According to Governor Williams the second was even then
accomplished only after he threatened a dissolution. See ibid. 5: 381, 387,
616-17. Secretary Mead (ultimately dismissed from office) was acting gov-
ernor of the same Territory most of 1806, and hostile to the Governor.
Various bills passed by an Assembly shortly after the latter's return were
vetoed by him — ibid. 529-30, 605. In Nov. 1807 the General Assembly again
met — in advance of the statutory date for its session — by resolution of the
two houses, and according to Governor Williams without his knowledge or
consent — ibid. 575; according to George Poindexter (the Territory's dele-
gate in Congress, and likewise one of the Governor's determined enemies),
their purpose was "to enable them to forward their memorials, if any were
thought necessary, to Congress so as to be acted on during the session, at
which they were presented" — ibid. 608. The Governor vetoed various of
their bills, seemingly without giving reasons, and after ten days prorogued
them to the date for their regular session in December — ibid. 579, 581, 608.
But after three weeks — the members representing to him that "through the
indisposition of some of its Members and the absence of others no business
of any importance to the Territory [was] yet done," and praying proroga-
tion, Ire prorogued them for a few weeks — ibid. 587, 590, 591. In the course
of this session the term of office of Governor Williams expired, and believing
that he could no longer act lawfully before reappointment (which took
place nine days later — ibid. 610 n. 17) he dissolved the Assembly — ibid. 614
and n. 25. This raised the question whether dissolution was effective in
ending the existence of the Legislative Council, Avhose members were ap-
pointed by the President; the opinion of the President supported the Gov-
ernor's opinion that it did — ibid. 617, 634-36 and n. 25. Another session
was held in Sept. 1808, and after the Governor made known the President's
approval of his position, persons were nominated for appointment to a new
Council — ibid. 640-44. The next session, however, in March 1S09, spent most
of its time, in Governor Williams' opinion, "in litigating subjects of no
public opinion, with which the Assembly [had| nothing to do, and such as
ccccliv
INTRODUCTION
employment, a charge that its use was tyrannical was inevitable.
Governor Harrison's political shrewdness — and in the writer's opin-
ion his genuinely democratic sympathies — minimized its employment
in Indiana Territory,2"" and in Illinois Territory no controversies
over it arose. The power was not included in the governmental plan
specially devised in 1804 for the government of Orleans Territory,
nor in the revised plan of 1805, 2"1 and though the District of Louisi-
ana was subjected to it in 1804 by extension over it of the executive
powers of the governor of Indiana Territory,232 it seems very doubt-
ful whether the power was continued by the act reorganizing the
Territory's government the following year.2:1:] It was omitted in
1812 from the organic act of the Territory. 2:u It was likewise
omitted from the organic act of Florida Territory2""' — naturally mod-
[were] only Calculated to inflame the public mind and promote certain
political & party purposes"; wherefore he resorted to another dissolution —
ibid. 713, 724. (As a matter of fact Governor Williams approved eight laws
and dissolved the Assembly after his term of office had expired, but the
validity of his actions was never challenged — ibid. 714 n. 82, 6: 12.)
The original bill of 1800 advancing Mississippi Territory from govern-
ment of the first to second stage contained a provision "designed to prevent"
prorogation or dissolution of the General Assembly at pleasure, but the
Senate struck it out — ibid. 5: 97 n. 21. This was because of resentment
against Governor Sargent's allegedly tyrannical actions — ante ccccxxii seg.
As a result of the troubles of 1807 George Poindexter twice in 1808 offered
a resolution in Congress for an inquiry into the expediency of repealing
the Ordinance's provision empowering the governor to prorogue or dissolve
a territorial "House of Representatives elected by the people." The motion
was each time approved and Poindexter reported a bill, but the matter was
indefinitely postponed. The postponement was on the motion of a Georgia
representative who argued that Georgia's consent to a change was essential,
since every provision of the Ordinance was part of a compact between that
state and the Union, and that "the people" of the Northwest Territory must
likewise consent — Annals. 1 Cong. 1 Sess. 1619, 1640; 10 Cong. 2 Sess. 487,
492, 501-9. (Although Poindexter was only a delegate he voted! — 509.)
230 gee Philbrick, Laics of Indiana Territory (I.H.C. 21), xxix-xxx;
Carter, Territorial Papers, 7: 685-86; Jesse B. Thomas to John Messinger,
Dec. 12, 1808 — 111. State Hist. Library: Messinger Papers.
23i Acts of March 26, 1804 and March 2, 1805 — Carter, Territorial Papers.
9: 202, 405.
232 By the second para, of sec. 12 of the act of March 26, 1804— ibid. 210.
233 in other words I believe that the limited reference to the paragraph
just cited, made in sec. 8 of the act of March 3, 1805 (ibid. 13: 94) should
not be regarded as making the paragraph of 1804 as a whole, and for all
purposes, "a part of the constitution of the new Territory of Louisiana,"
and understand Dr. Carter (ibid. 94 n. 64) to have thus referred to it only
in the limited sense involved in the subject matter there before him.
234 Act of June 4, 1812 (sec. 4) — 77. S. Stat, at Large, 2: 744.
235 Act of March 30, 1822 (sec. 5) — ibid. 3: 654. There was no mention
of even a veto power; nor was this mentioned in the amending act of March
3, 1823— ibid. 750.
cccclv
ILLINOIS HISTORICAL COLLECTIONS
elecl on that of Orleans. If not needed in territories of foreign ante-
cedents it could not long have continued to be considered necessary
in those of wholly native background, and it seems not to have ap-
peared again.
Obscurities and Controversies Arising from Concentration of
Governmental Powers.
(1) In General.
There is a bulky literature on the doctrine of division of powers
and its history in this country. The matters to be here considered
are only a footnote to that history. From our colonial experience
we gained a conviction — which the experiment of the Confederation
made sharply clear — that successful federalism must rest on a fuller
and better division of governmental powers than that tried in the
Articles of Confederation. The task of the framers of the Constitu-
tion was to insure a community of equal states and to guard against
excessive power in the federal government to which they entrusted
the protection of common interests. But permanence and smooth
functioning were also essential to the federal government, and it was
necessary to avoid in it the vices manifested in the state governments
of the Revolutionary period, the chief of which was the virtual
omnipotence of the legislature. This was done by forbidding out-
right the legislation in favor of debtors which more than anything
else had discredited the state legislatures of the period, and — beyond
that — by a resort to the plan of checks and balances. Some of these
were provided by giving the executive a qualified veto (as in a
minority of the state constitutions of the day) upon legislative acts;
giving the judiciary the further power of invalidating laws con-
flicting with the Constitution ;236 permitting the executive and the
Senate to join in selecting the judiciary ; granting to the judges
tenure during good behavior; and making them subject to impeach-
ment by the Senate.
The rights we desired within the British colonial empire would
have made it a federal system. As Professor McLaughlin repeatedly
236 The writer accepts the view that such was the intent of the framers
— see C. A. Beard, The 8uj>reme Court and the Constitution (1912). Note
Hamilton in The Federalist, Nos. 78. 81.
cccclvi
INTRODUCTION
pointed out, John Dickinson was dimly conscious of the fact and of
the principles involved,237 but Great Britain was not yet ready for
changes that ultimately created the British Commonwealth of Nations.
When Americans created their own colonial system they utterly
ignored, save for one great democratic principle to which the states
were committed by compact long before the Ordinance was drafted,238
their Revolutionary preachments and their theories respecting the
distribution of governmental powers. The governmental plan of the
Ordinance created a system in which the political rights of citizens
were extremely limited both in number and content. It was also one
completely dominated by an extraordinarily centralized executive
authority. But since it also provided liberally for the existence and
protection of personal liberties, it cannot be said that it authorized
a government that was potentially tyrannical. Autocratic and poten-
tially capricious it might be — and under Governor St. Clair in some
respects actually was ; but it could not be worse than that.
The incongruity of making the governor and judges the terri-
torial legislature was no greater as respected them than as respected
him. It was, of course, patently undesirable that the judges should
frame laws which they would later be required to construe, or upon
the validity of which under the Ordinance they might be compelled
to rule. The impropriety was apparent to them and to Governor St.
Clair, but — like other undesirable features of the judicial system239 —
was excused on the ground of necessity ;240 that is, by the poverty of
both the Territory and the federal government, neither of which
could afford to support an independent legislature. With the execu-
tive and judiciary thus united as a legislature, and remembering that
237 See ante cvi-vii; A. C. McLaughlin, "The Background of American
Federalism" (1918), American Political Science Review, 12: 225-26, 220-21,
238; A. V. Dicey, The Laiv of the Constitution (6th ed. 1902), ch. 3. And
see quotation from Dickinson, ante n. 18.
238 Ante cccxiv-xvi.
239 Ante xxi, xxviii.
2to St. Clair to Judges Parsons and Varnum, Aug. 2, 1788 — Carter,
Territorial Papers. 3: 274, W. H. Smith, St. Clair Papers. 2: 359; answer
of Judges Symmes and Turner to address of Governor St. Clair on May 25,
1795 — ibid. 369. An act of 1734 in New York had denied judges the right
of membership in the legislature. The service of the judges of the Supreme
Court as a council of revision created by the Illinois constitution of 1818 was
found undesirable and abandoned. Note in the Illinois constitution of 1818
the exclusion of judges, clerks of court, and many other officials from the
legislature. This marked approval of the doctrine of separation of powers,
but had no special local significance.
cccclvii
ILLINOIS HISTORICAL COLLECTIONS
the judges were not especially competent, it is easy to understand
how Judge Turner — who merely felt that it was a judge's duty to
enforce the law — forgot in the Illinois Country in 1795 that at com-
mon law a judge can only do that retrospectively after a violation,
by punishing or awarding damages in proceedings initiated through
other agencies. The Governor properly admonished him that his
office was "neither inquisitorial nor executive,"241 but in declaring
that the executive and judicial authority were "quite distinct" he
ignored the fact that however clear might be to him the line drawn
between them by the Ordinance it was not identical with the line
drawn by history and generally recognized. We shall see that some
executive encroachments sanctioned by the Ordinance were in some
territories renounced by the governors, while in others the}' were
bitterly contested by the judges.
Various members of the last Continental Congress were also
members of the Federal Convention, and participated in its work
of framing a constituton designed with logic and wisdom to ac-
complish definite ends. Early commentaries on tjie Ordinance eulo-
gized it as contrived by political scientists equally striving to draft
an ideal government for infant republican communities. It was
rather a product of forthright political reactionaries, determined to
control an assumedly untrustworthy (and potentially revolutionary
and traitorous) population, such as had long settled the inland
frontiers of the various colonies and sought impertinently either to
be left alone or be conceded equal representation in the colonial
legislatures.-42 Its framers were logical — and, in view of their atti-
tudes toward frontier society, not hypocritical. That does not alter
the fact that the Ordinance was, in its day, completely out of the
main current of the country's political thought. It was a revolt
against legislative absolutism, an equally extreme example of execu-
tive absolutism set up for a deliberate purpose. But doctrines change
with changing circumstances. Today — when the justice of adminis-
trative tribunals and agencies of government illustrate, with many
other things, impatience with the doctrine of distributed power —
the Ordinance has a renewed interest in connection with the devel-
24i St. Clair to Judge Turner, May 2, 1795 — Carter, Territorial Papers.
2: 513; to Secretary of State, May 4 — ibid. 518.
2+-' Ante cccxlvii-viii, ccclvi-vii, cccxxxii seq.
cccclviii
INTRODUCTION
opment of what Simon Baldwin called "absolute power, an Ameri-
can institution."243
(2) Concentration Necessarily Caused Obscurities.
When power is so greatly concentrated as it was by the Ordi-
nance, and varieties of power so little distinguished, obscurities are
inevitable. Judges Symmes and Turner justifiably wrote to Acting-
Governor Sargent in 1790: "The ordinance ... is silent on many
points with respect to the powers and duties of the principal offi-
cers."244 The differences which arose from this cause between gov-
ernors and secretaries of early territories have already been noted.215
The question has also appeared whether the governor, secretary
of state, or even the president could compel a judge to return to his
territory for the performance of either judicial or legislative duties.246
And it has been seen that the collection of license and passport
fees by Governor Sargent, in Mississippi, following the practice of
Governor St. Clair in the Northwest Territory, was one of the main
charges upon which his enemies based their demand for his removal
from office.247 Some other points were the subject of contention in
the Northwest Territory, others elsewhere. Together, they amply
illustrate the accuracy of the above-quoted assertion by the judges
in 1790.
(a) government by proclamation.
The military background of the officers of several territories
was visibly of some influence in blurring the distinctions between
different governmental powers. This was markedly true in the
Northwest Territory and in Mississippi. Mr. Pease noted the army
mind displayed in some of the early laws, and of one or two that
were denunciatory of evil conduct but prescribed no penalties there-
for he acutely remarked that "a person with military experience
would say that in phraseology they were general orders rather than
laws.248 Almost unlimited civil authority and command of the
2*3 s. E. Baldwin, Modern Political Institutions (1918), ch. 4.
244 Carter, Territorial Papers, 2 : 304.
245 Ante cccxciii seq.
246 Ante xxix-xxxi and n. 64.
247 Ante ccccxxiv seq.
248 t. C. Pease, Laws of the Northwest Territory (I.H.C. 17), xix, xx.
cccclix
ILLINOIS HISTORICAL COLLECTIONS
militia were united in the governor. Other executives must have
felt at times as did Secretary John Gibson of Indiana Territory, a
bluff old soldier, who at a time of threatened Indian troubles in-
structed a captain of rangers, "This territory is under no law
that can force obedience but the Military and all of its subjects must
obey the governing rule or be sent out of it."240 It is extremely
creditable to them, if they did at times feel so, that no evidence of
it was manifested in their acts, no matter how low an opinion some
of them held of their frontier "subjects," and no matter how
clearly they may have realized, as did St. Clair,250 that they were rul-
ing colonies that were no part of the Union.
Action was sometimes taken, however — provoked by emergen-
cies when normal administrative processes were impossible — which
was occasionally a harmless manifestation of military instincts, and
at other times of the most serious possible character. It might be
called government by proclamation.
Governor St. Clair, in 1789, was ready to order by proclamation
disobedience to laws if promulgated as such by the judges despite
his dissent.2"'1 Certain county judges having originally been com-
missioned during good behavior, and Acting Governor Sargent hav-
ing in 1793 issued new commissions during pleasure, they declined
to act under the new and threatened to proceed under the old. In
this case, Sargent wrote, he would suffer proceedings to continue
"except public Instances of their corruption should be adduced to
me in which Case at all Events I should cry them down by procla-
mation."252 Governor St. Clair was able to compose the judges and
restore tranquillity. But in 1809 Governor Hull of Michigan called
by proclamation upon all officials, civil and military, and all good
citizens, to obey and enforce certain laws the validity of which was
denied by two judges, though affirmed by him and a third judge.253
In only one of these cases, therefore, was there an actual proclama-
2*9 Letter of May 22, 1807 — W. W. Cockrum, Pioneer History of Indiana
(1907), 207.
-'so See Carter. Territorial Papers, 2: 45S, 520, 521-22, 523-24 (letter
July 24, 1795), and W. H. Smith, St. Clair Payers. 2: 378-83 (letter of Dec.
3, 1795).
25i Ante n. 216.
2-'2T"o St. Clair, Feb. 7, 1793— Carter, Territorial Papers. 2: 432; com-
pare 3: 408-10 and letter of St. Clair to Secretary Randolph, May 9, 1793 —
W. H. Smith, St. Clair Papers. 2: 312-15.
253 Ante at notecall 209; and Carter, Territorial Papers. 10: 295, 321-24.
cccclx
INTRODUCTION
tion, but the consequences in that case were of the utmost seriousness.
Instances of less seriousness were fairly numerous. Governor
St. Clair, when in the Illinois Country in 1790 without the judges —
so that no special session of the legislature was possible — -"was
pleased to order and direct" (as the executive journal reads) the
creation of a new county; and by a "proclamation" created judi-
cial districts within the same and provided for the holding of courts.
He also regulated liquor licenses, and sales, in the same manner. He,
in Illinois, and after his departure Acting Governor Sargent at
Vincennes, similarly prohibited hunting in the Territory by stran-
gers, regulated trade down the Illinois River through Peoria, required
of all strangers passports and prompt report of their presence to local
authorities, and forbade the cutting of timber for transportation
to the Spanish side of the Mississippi.254 Some of these acts would
seem to fall within the governor's military powers and his authority
as superintendent of Indian affairs — which was everywhere inter-
preted as permitting him to control trade in and travel through the
Indian county. Others very plainly were proper subjects of legis-
lation. The President, when these acts were called to his attention,
admonished St. Clair in "a private and friendly letter" to observe
the utmost circumspection in avoiding acts which could enable per-
sons to clamor against the government, "paying no regard to the
absolute necessity of the case which produced a momentary stretch
of power. ' '255 Of course a clamor was raised, and the cry of govern-
ment by proclamation was coined, for the frontier population was
abnormally sensitive to any police regulations involving the sale
of liquor (especially to Indians), hunting, spoliation, and illicit
trade — as was again shown when Judge Turner interfered, five years
later,, with the last,256 and on other occasions.257 By another procla-
mation by Acting Governor Sargent, of this same period, he pur-
portedly attempted to give effect to two territorial statutes three
months before they could, by their terms, operate. "Of course,"
->•-'-' Carter, Territorial Papers, 3: 301, 308, 310, 314, 315. He also issued
land patents in Indiana and Illinois — letter of Feb. 10, 1791 to Secretary of
State — ibid. 2: 322; he was given this power by act of March 3, 1791 — ibid.
2: 339.
235 Letter of Jan. 2, 1791 to St. Clair— Carter, Territorial Papers. 2: 320;
compare 315, 318.
256 Ante xxxi and n. 68 ( Sec. I ) .
257 Ante n. 87 — tavern law of 1792; ri. 94 — Indian trade.
cccclxi
ILLINOIS HISTOKICAL COLLECTIONS
Judge Turner wrote to him, "any proclamation to the contrary is
founded on no lawful authority, and ... I should think it my indis-
pensable duty to bring every magistrate to punishment who should
presume to act under such a proclamation."238
There were similar instances in the Southwest Territory of
proclamations essentially of legislative character, or altering legis-
lative provisions, in 1793, 25° but they were seemingly all cases of
necessity and a committee of Congress by which some were consid-
ered reported that they should not be disapproved.20"
It will be noticed that by far the most dangerous example of an
improper resort to executive proclamation occurred in Michigan
nearly twenty years after the last resort to such procedure in the
Northwest and Southwest territories. It was quite true, as Sargent
wrote to St. Clair in 1793, that where circumstances made legislation
sporadic and scanty "An authority some where should exist for
such temporary regulations as particular Exigencies might require —
The Judges," however, he added, "never will, I am persuaded, con-
sent to lodge this power with the Governour, and unless he may re-
ceive it from Sovereign Authority we shall I apprehend have Oc-
casion long to lament a want of the necessary provision to our future
welfare. "2,il No difficulties had appeared in the very beginnings of
the Territory, before even the simplest civil organization had been
effected. When it was desired, for example, to prohibit the sale of
liquor to Indians at Marietta in 1788, a "temporary regulation" was
adopted, forbidding such sales unless licensed by the commanding
general or the chief of police.262 This was long before there were
any laws establishing courts or regulating the subject matter. The
Governor and judges were there — all old soldiers; but the "regula-
tion" need not be considered military. For months the Marietta
community lived like any frontier settlement, under its own ex-
temporized rules of conduct. Such simple and uncritical co-opera-
tion between the civil and military, the executive and judicial,
powers — and submission by all to regulations all devised as members
of the community — could not survive the creation of a formal gov-
2 "'8 Carter, Territorial Papers, 2: 305, and the laws cited in n. 25.
ass ibid. 4: 309, 452, 453, 454.
260 /6id. 327-28.
-^IMcl. 3: 400.
262 iud. 2: 137; also ante cccxlix and n. 278.
cccclxii
INTRODUCTION
eminent. Organization necessarily involved a division of powers,
and that has for its very purpose the development of jealousies of
jurisdiction. Thus, within a government near to despotism there
necessarily developed jealousies of office that sharpened distinctions
of function, and would result in a completer division of powers.
(3) Pardoning Power.
Prayers for the exercise of this power were certain to arise —
particularly if crimes on the frontier should be as numerous and
vicious as conservatives like the Ordinance's framers imagined them.
Yet there was no mention of the power in the Ordinance. In fact it
was first mentioned in the organic act of Orleans Territory of 1804.2,1:;
Since the portion of that enactment relating to the District of Louisi-
ana extended over this the executive authority of the governor of
Indiana Territory,254 the exercise of the power rested in the District,
temporarily, upon implication only — for when Indiana had been
separated "for the purposes' of temporaiy government" from the
Northwest Territory, the Ordinance as the latter 's organic act was
merely continued as such in the daughter territory.263 And this was
true, likewise, in the case of Michigan Territory, when created b}^
severance from Indiana. 2,;<; But, two months later, when the gov-
ernment of the District of Louisiana was reAdsed, the draftsman of
its new organic act — discovering in its first the express grant of the
pardoning power in the Orleans portion — inserted this in the new
act for the Territory of Louisiana (Missouri).
This matter of clemency to criminals — seemingly not often shown
in those times — is not of itself of particular importance. As regards
actual territorial administration it happens that the variances of
legislation pointed out were of no importance, because the power,
where not expressly given, was everywhere assumed to be impliedly
granted. But the illustration of variant statutory provisions through
different lines of territorial "descent" is significant because very
characteristic of all legislation on the territories down, at least, to the
passage of the Wisconsin act in 1836 ; and in my opinion Dr. Farrand
263 Sec. 2 of act of March 26, 1804— ibid. 9: 204.
264 Sec. 12, ibid. 210.
265 Sees. 1-3 of act of May 7, 1800— ibid. 3: 86-87.
266 Sees. 1-3 of act of Jan. 11, 1805— ibid. 10: 5-6.
cccclxiii
ILLINOIS HISTORICAL COLLECTIONS
exaggerated the uniformity even of general principles that followed
that.2"7 Down at least to that date there was no centralized atten-
tion, no constant attention, to territorial conditions or problems by
any department of government. There was necessarily some uni-
formity in skeletal provisions, but only because so general, so ele-
mentary, that they were in all cases necessarily stated.
As for the actual practice respecting pardons, Governor St.
Clair, and Secretary Sargent after his transfer to Mississippi268 as
governor, considered the power implied. Governor Blount did the
same in the Southwest Territory.269 As already stated, the power was
explicitly conferred in the Louisiana-Missouri Territory, but was
rarely exercised.270 No question of a pardon seems to have arisen
in Michigan until 1809 when the governor was asked to remit a
fine. Hesitating to do so because he had no express au-
thority, the attorney general of the Territory informed him that
St. Clair had always considered the power incidental to the gov-
ernor's office; that he had heard the judges of the Northwest Terri-
tory "give an Opinion, that it was incidental," and that Governor
Harrison had remitted penalties in Detroit, when it was part of
Indiana. Governor Hull, on these precedents, exercised the, power.271
It was seemingly liberally exercised by Harrison.272
(4) Appointing Power.
It was provided in the Ordinance that there should be "ap-
pointed from time to time by Congress" a governor and a secretary.
After some other provisions respecting each of these officers the Ordi-
nance continued: "There shall also be appointed a court ... of
three judges" — but by whom was not stated. The third paragraph
following this read as follows :
2G7 m. Farrand, Legislation for the Territories, 15, 38.
20s Carter, Territorial Papers, 6: 89-70, 72, 134-35, 288. 334-35.
269 IM$. 4: 466.
zTo.IMd. 13: 542-43; T. M. Marshall, ed.. The Life and Papers of Fred-
erick Bates (1926).
271 Carter, Territorial Papers, 10: 302-3. This power also was given
to different territorial governors irregularly. The general principle was
not adopted that it belonged in each organic act. The governor of Missouri
Territory, for example, did receive it in 1805 and in 1812 — U. S. Stat, at Large.
2: 331, 744; but it was expressly granted in Michigan only in 1823 — act of
March 3, ibid. 3: 770 (sec. 5).
2T2 Philbrick, Laivs of Indiana Territory {I.H.C. 21), clxxiv, clxxvi,
clxxviii.
cccclxiv
INTRODUCTION
Previous to the Organization of the General Assembly the gov-
ernor shall appoint such magistrates and other civil officers in each
county or township, as he shall find necessary for the preservation
of the peace and good order in the same. After the general assembly
shall be organized, the powers and duties of magistrates shall be
regulated and defined by the said Assembly; but all magistrates and
other civil officers, not herein otherwise directed shall during the
continuance of this temporary government be appointed by the gov-
ernor.27*
When the Ordinance was re-enacted the foregoing provisions were
altered by this amendment: "the President shall nominate, and
by, and with the advice and consent of the Senate, shall appoint
all Officers which by the said Ordinance were to have been appointed
by the United States in Congress assembled." It has already .been
pointed out that the inclusion of the judges among officials ap-
pointed by the federal government rested upon common sense rather
than upon a strictly legal construction of the Ordinance.274 To have
allowed their appointment by the governor would have been a mon-
strous disregard of the doctrine of checks and balances, inconceivable
by officers of a federal government of which that doctrine was the
basis.
Aside from this one extraordinary ambiguity there could be
little doubt concerning the governor's unlimited powers, as expressed
in the Ordinance. They were challenged in various territories, bit-
terly ; but with one exception — -the power to appoint clerks of the
General Court — the chief cause for contesting his powers was politi-
cal. That is not to be wondered at, for the exercise of the powers
by the governors was equally political. From the highest judicial,
fiscal, and other administrative officers of the county to the lowest
2"3 Carter, Territorial Papers, 2: 41, 43-44; italics added.
2T* The Ordinance also provided that militia officers of general rank and
members of the legislative council should be appointed by Congress, and
there was this provision: "The Governor, Judges, legislative Council, Sec-
retary, and such other Officers as Congress shall appoint . . . shall take
an Oath or Affirmation of fidelity" — ibid. 43, 44-45. Laymen would conclude
from this that although it was not expressly provided that the judges should
be appointed otherwise than by the governor, the inclusion of the word
"judges" in the provision for an oath of office carried an implication that
should bar appointment by the governor. Under general rules of legal con-
struction this would not be so — as Attorney General Levi Lincoln pointed
out ("express positive provisions are not usually abridged by implications"
— ibid. 3: 209). See ante n. 9, iwst n. 276.
cccclxv
ILLINOIS HISTORICAL COLLECTIONS
of township officials all the local officers were under the governor's
control — nearly seven hundred in Ohio, St. Clair's opponents esti-
mated, on the eve of its admission to statehood.273
There was no question whatever of an unfettered power to ap-
point all militia officers under general rank,270 but — presumably be-
cause of the social prestige involved277 — no other appointments were
so productive of animosities. Governor Ninian Edwards of Illinois
evaded his responsibility by substituting company elections for ap-
pointments by himself on his own judgment and responsibility.278
275 ibid. 3: 224. Of course, when the opposition had as its friend a
secretary of its party, or one ambitious of succeeding as governor, it re-
sorted to politics, so far as possible, through him — ante cccxcviii-ix; Carter,
ibid. 3: 240, 242. When the Mississippi legislature petitioned in 1802 for
a change in the appointive system its desires, naturally enough, were to
strip the governor of all powers and exercise them itself — ibid. 5: 160.
276 ibid. 2: 43. Judge Woodward denied the right of Governor Hull
of Michigan to issue brevet commissions — ibid. 10: 251-52. The original
Ordinance gave tbe governor power to appoint militia officers below general
rank. The re-enacted Ordinance gave to the president and Senate the power
to appoint officials who by the original Ordinance were appointable by the
old Congress. Militia officers of general rank were not mentioned as ap-
pointable by the old Congress. The question necessarily arose, who should
appoint them; Carter, Territorial Papers, 6: 15, 52, 223-24, 526. In 1810
Attorney General Rodney was of the opinion that the statutes "clearly estab-
lished" the right of appointment by president and Senate — Official Opinions
of the Attorneys General of the United States (1852 ) 1: 165. Clearly
this was mere assumption. However, as respects precedent, he stated that
there had been presidential appointment in more than one instance — and
seemingly referred to Mississippi Territory alone.
277 Much later, Governor Coles reported to the Secretary of War that
the militia in Illinois was inefficient and of bad social effect; that it was
"a mere school of titles" — E. B. Greene and C. W. Alvord, The Governors'
Letter Books, lS18-183.'t (I.H.C. 4), 110. But its nature was the same every-
where. On the status of the officers of the regular army in Mississippi
Territory see ante n. 18; it is probably no mere coincidence that troubles
over militia appointments were there particularly serious — see Carter, Terri-
torial Papers. 5: index s.v. "Militia — appts. to."
278 n. W. Edwards, History of Illinois. 34-35; against the advice of
Senator John Pope of Kentucky, a lifelong friend — E. B. Washburne, ed.,
The Edwards Papers (Chicago Historical Society's Collection, vol. 3, 1884),
40. Characteristically, Gallatin approved of Edwards' action — ibid. 46-47.
It was probably general doctrine among pronounced Republicans — see
Nathaniel Macon's opinion, W. H. Smith, St. Glair Papers, 2: 591; see also
petition from Clark County, Indiana Territory, Dec. 12, 1809 — Carter, Terri-
torial Papers, 7: 687. Governor Edwards also, in 1815, remitted all militia
fines imposed that year — E. J. James, Territorial Records of Illinois (111.
State Hist. Library Publications, no. 3), 38; and see law of Jan. 4, 1S16 — post
195.
Naturally the Governor's concession to the militia provoked a demand
for popular election of county officials — E. B. Washburne, Edwards Papers.
72. To that, however, he did not yield.
cccclxvi
INTRODUCTION
Contention over appointments to the minor .judiciary were few,2711
and such as arose were not due to obscurity in the Ordinance. The
difficult point of the governor's power to remove an officer he had
appointed was raised in Michigan, but as the commissions involved
had all been for tenure at the governor's pleasure the issue lacked
substance.280 It appears, however, that in the Northwest Territory
commissions to county judges that were in terms for tenure without
limitation of time, and issued before the passage of laws regulating
the courts inconsistently with such tenure, were recalled and .com-
missions for tenure at the governor's pleasure substituted. The
judges refused to accept the new commissions, and threatened to
continue holding court under the old. "I was prepared," Governor
St. Clair wrote to the Attorney General, "if they persisted in hold-
ing the court under their first commission ... to have sent them a
supersedeas, which would have stopped them, but not without some
confusion and discontent." The difficulties were nevertheless com-
posed only by a compromise which permitted one session under a
commission of the original form, the proceedings to be given "valid-
ity" by the legislature.281 It is not intended to suggest that the
Ordinance should have contained provisions anticipatory of such
contingencies. The problem of removals, still a difficult one, was no
doubt then scarcely adumbrated. The purpose is merely ta con-
tinue illustrations of the Ordinance's mundane imperfections.
As alread}' said the point most strongly contested was control
of an auxiliary officer of justice — the clerk of court. St. Clair would
not receive from courts, "as Courts," recommendations of men for
appointment as justices of the peace, though he would gladly receive
from the judges as individuals information respecting the qualifica-
tions of possible appointees.282 Governor Harrison, on the other
hand, gave public notice that he would welcome suggestions as to
279 Judge Woodward questioned the power of Governor Hull to appoint
justices of the peace with jurisdiction throughout the Territory of Michigan
— Carter, Territorial Papers, 10: 254. The power, however, seems to have
been clear. Governor St. Clair appointed Secretary Sargent and Secretary
Harrison such justices in the Northwest Territory — ibid. 283, 517.
280 ibid. 10: 254-55.
28i Sargent to the judges, Feb. 9, 1793 — ibid. 3: 408-11; St. Clair to
Attorney General Randolph, May 9, 1793— W. H. Smith, St. Clair Papers,
2: 312-15; commission of Aug. 6, 1793 — Carter, Territorial Papers. 2: 456;
St. Clair to Secretary Jefferson, Aug. 9, 1793 — ibid. 457.
282 ibid. 3: 435.
cccclxvii
ILLINOIS HISTORICAL COLLECTIONS
any office and acted on recommendations of judges for appointments
to their own court. Yet even he vetoed a bill because it provided
that the governor should remove any clerk of court upon request
of the court. "I cannot consent," said he, "that a single judge, or
any number of judges, shall have the right to direct the executive
in any matter which is purely of an executive nature." So much
for interference by the judiciary. Another reason was that the bill
provided that clerks of the common pleas should also be clerks of
the district courts in counties where the emoluments of one office
alone would not induce a properly qualified person to serve. The
governor, Harrison said, must be free to divide the offices if he
thought it proper to do so. So much for interference by the legis-
lature.283
These instances illustrate how strongly, the executive depart-
ment had come to cherish its statutory power. In the Southwest
Territory the judiciary seemingly acquiesced in the executive claim
as warranted by the Ordinance.284 On the other hand, in the Terri-
tory of Orleans the governor seems to have acquiesced for several
years, at least in the case of the highest territorial court, in a choice
of the clerk by the judges. But, later, Governor Claiborne asserted
his superior right, and had his way.28*"' In Mississippi Territory the
original practice was as in the Northwest Territory, but a decade
later — in the case of the highest court — its judges were asserting
the common law principle that the power to appoint its clerk was a
prerogative inherent in the court, which refused to recognize the
governor's appointee. The question was referred by the Secretary
of State to the Attorney General. It does not appear what opinion
he gave, but a distinction could hardly be drawn between the
county and the territorial courts, and the governors continued to
appoint the latter.286 In general, appointments by the governors
unquestionably prevailed. But it has already been seen how de-
termined was the opposition of the territorial judges in the Illinois
Territory in 1814 to the provision for appointment by the governor
283 On his general policy see Philbrick, Lmvs of Indiana Territory (I.H.C.
21), xix. On the veto see L. Bsarey, Messages and Letters of W. H. Harrison.
1: 319.
284 Carter, Territorial Papers. 4: 123.
285 ibid. 9: 852.
isGlbid. 5: 655-56, 731; 6: 247-48, 282.
cccclxviii
INTRODUCTION
of clerks of the General Court, and that Congress, in the act of 1815
which settled the controversy, gave to the territorial judges the power
of appointing the clerks both of the Supreme Court of Appeal and
of the several circuit courts held by the judges individually. It has
also been seen that this reorganization of the Illinois territorial
judicial became the model for the judicial system in other terri-
tories thereafter.287 It must be regarded as an amendment of the
Ordinance, not extending to the subordinate courts in territories
under that instrument's governmental plan.288
It might have been expected that appointments by the governor
to new offices — not mentioned in the Ordinance — would have roused
the strongest opposition. This opportunity was, however, generally
overlooked. Such an office was that of the territorial attorney gen-
eral, and its origins are in other ways so interesting as to excuse a
brief account of them. Governor St. Clair suggested the necessity
of such a legal officer in territorial administration after one year of
his own experience.289 It was eight years, however, before the office
was effectively filled, notwithstanding that its existence was earlier
assumed and a salary provided for it in earlier legislation.290 The
delay was due to three causes : the impossibility of securing a compe-
tent lawyer (one capable, among other qualifications, of giving St.
Clair assurance in dealing with the judges — though all were his in-
feriors), reluctance to burden the Territory's scanty population with
a salary adequate to attract talent, and a hope that the federal gov-
ernment would assume the burden.291 There was good excuse for
this hope, and for a time the propriety of aid was recognized in
287 Ante liv.
288 For example in Michigan — compare ibid. 10: 732, 771, 773 for appoint-
ments by the governor in 1817-1818 of clerks of county courts.
289 In a letter of Aug. 1789 to the President — ibid. 2: 207-8.
?90 In 1796 — see ibid. 2: 208 n. 39 for various citations respecting the
Northwest Territory.
29i St. Clair wrote to Secretary Wolcott, Dec. 3, 1795: "The Office has
been refused, or"— nota bene — "resigned, by every Practitioner at the Bar
who was in any wise Capable of executing it. The necessity of such an
Officer, and that some allowance should be made him by the United States,
has been often, and fruitlessly, reported by me, & as yet the Situation of
the People does not admit of their being burdened with Salarys." The
emoluments of the office had been increased by an act of June 16, 1795 [T.
C. Pease, Laws of the Northwest Territory (I.H.C. 17), 170-81]. He had
offered the position to his son, practicing in Pittsburgh — Ohio State Lib.:
St. Clair Papers: Copy (transcript read in State Dept.).
cccclxix
ILLINOIS HISTOBICAL COLLECTIONS
Washington.-"2 However, after a federal district court was estab-
lished in 1804 in the Territory of Orleans,203 and provision had been
made the following j^ear for the office of district attorney in other
territories, as well, for protection in territorial courts of the interests
of the United States when it was a party to suits in equity therein,294
this very limited aid was adhered to by the federal government as
sufficient. Now, all territorial interests, including those protected
in prosecution for crime, were interests — in either a materialistic
or a nonmaterialistic sense — of the United States, to which the terri-
tories belonged. All parties disregarded the nonmaterial interests.
But even as respects material, the territorial attorneys general, in
defending territorial interests in common law litigation must actually
and incidentally have defended national interests to some extent.
Despite the federal government's limitation upon its financial aid it
continued to receive in .some territories the services of their legal
officer.29"' Of course there naturally existed some confusion in early
years between the two offices ;2'"; and since that could not have existed
in Governor Harrison's mind, it is clear that in 1808 the attorney
general of Indiana was performing services for the United States of
which the legislature was not conscious.2'17 The attorney general.
202 Secretary Sargent, on becoming governor of Mississippi Territory,
evidently urged the necessities of the office upon Secretary Pickering who
replied: "a Territorial Attorney . . . could a provision be obtained for such
an officer, might render services to the United States as well as to the Terri-
tory, to merit a handsome compensation" — Dec. 10, 1798, Carter, Territorial
Papers, 5: 53. In the petition of the Vincennes Convention (Dec. 1802)
there was included a prayer that the attorney general of the Territory be
compensated for services rendered the United States — J. P. Dunn, "Slavery
Petitions and Papers," Ind. Hist. Soc. Publications. 2: 467; and committees
of the House of Representatives twice reported favorably on the demand —
March 2, 1803 and Feb. 17, 1804, in Annals. 7 Cong. 1 Sess. 1353, 8 Cong. 1
Sess. 1023; the latter also in ASP. Misc. 1: 387.
2i>3 Sees. 8. 6 of act of March 26, 1804— Carter, Territorial Papers. 9:
208, 205.
294 Ante xl-xli.
205 So in Michigan Territory, where the office of attorney general was
created by a territorial law of 1807. "Previous to that date, and under [an
earlier] territorial law . . . the court appointed an attorney from time to
time as occasion arose to represent the Territory and the United States" —
ibid. 10: 207 n. 11. There speedily existed in that Territory imperative
reasons for a district attorney because of the great number of admiralty
and customs cases. In Illinois the establishment of a federal court followed
by some time the creation in 1818 of the state.
2oe Ante n. 114 of Sec. I.
29" Since Governor Harrison vetoed a bill concerning the office of attor-
ney general, which bill provided for his appointment by the general as-
cccclxx
INTRODUCTION
before there were regularly provided county or district attorneys,
sometimes served the counties.208
On the governor's mere power of appointment to the office little
controversy arose. The circumstances under which Governor St.
Clair made the first appointment were such that, as respected
merely the appointment, no charge of politics or nepotism could
very well be made,2"9 but the fact that the commission to his son was
made, most exceptionally, for tenure during good behavior — in order
to protect him, as the Governor frankly admitted, against removal
by an expected successor — was one of the few charges, among
those pressed against him in 1802, which the members of the Presi-
dent's cabinet found established and strongly condemned.300 In the
District of Louisiana (Missouri) much more serious difficulties devel-
sembly (or house of representatives), for two reasons: first, that it violated
the Ordinance of 1787; second, that it was improper because the attorney
general prosecuted pleas of the United States — L. Esarey, Messages and
Letters of W. H. Harrison, 1: 320. The reference was doubtless to actions
at law.
298 For example, Benjamin H. Doyle was allowed $10 on March 7, 1810 by
Randolph County, Illinois, for his services as attorney general in prosecut-
ing Francis King and James McGlaughlin "before the last Genl Court at
Kaskaskia" — County Court Record, 1810 (MS), p. 18. And on July 5, 1810
"The Court taking into Consideration the many embarrassments they often
experience in the settlement of Claims against the County and that in all
probability many impositions may be practiced upon them, do agree to allow
Thomas Y. Crittendon attorney Genl the sum of ten dollars per term for
every term he shall attend for the purpose of giving counsel to the court
in behalf of the County" — ibid. 47.
209 Ante n. 291.
300 For the charges see Carter, Territorial Papers, 3: 212-13. Attorney
General Lincoln pronounced it "highly censurable"; the Secretary of the
Navy, Robert Smith, found St. Clair's justification unsatisfactory; Secretary
Madison found the action admitted and unpailiated, and Gallatin merely
emphasized that it was admitted but did not regard it (together with
other charges) sufficient to justify removal.
Most of the significant documents recording the efforts to secure St.
Clair's removal from office will be found ibid. 198-258, Attorney General
Lincoln's letter of May 25, 1802 to the President might be added — Library
of Congress: Jefferson Papers. References to other materials in W. H.
Smith, St. Clair Papers, and in D. M. Massie, Nathaniel Massie (1896) are
given by Dr. Carter, ibid. 220 n. Those who read St. Clair's letter on the
notice of his removal — W. H. Smith, ibid. 2: 599-601 — should also read
Madison's earlier admonition of June 23 (referred to by Smith, ibid. 570 n.)
in Carter, 3: 231, and St. Clair's reply to this admonition quoted by Smith,
2: 571 n. In order to understand the comments of cabinet members upon
no. 7 of the specific charges listed in Carter, op. cit. 3: 212-13, it is necessary
to note St. Clair's letter to the justices of Adams County — Smith, op. cit. 425 n.
The opinions of Secretaries Gallatin, Smith, and Madison (that of Levi
Lincoln is cited above) will be found in the Lib. of Cong.: Jefferson Papers,
vol. 123, under dates of April 30, June 15, and June 19 respectively.
cccclxxi
ILLINOIS HISTORICAL COLLECTIONS
oped. While Governor Harrison of Indiana acted as its executive
he appointed an attorney general of the territory, Rufus Easton,
but the office was vacated by his appointment as a territorial judge.301
Probably following a practice in the Territory of Orleans302 Gov-
ernor Wilkinson nominated James Donaldson as "a District At-
torney to attend the [General Court] . . . since the Territory is
divided into Districts." The two territorial judges refused to ac-
knowledge the commission, seemingly with some justification. In
various territories an attorney general was appointed preceding
statutory creation of the office ; it was seemingly regarded as being
at common law an office necessary to the administration of justice.
Hence, in 1789, St. Clair declared: "the Governor by the Ordinance
has power to appoint an Attorney General but not to give him a
Salary. ' '303 However, the situation in Louisiana Territory was not one
of common law. The statute of Congress was miserably drafted, and if
it covered the situation at all it was by implication, and despite in-
consistencies.3"4
Governor Wilkinson next gave Mr. Donaldson a commission as
sol Carter, Territorial Papers, 13: 253.
302 The attorneys listed ibid. 9: 602 — other than J. W. Gurley, who was
attorney general of the Territory (ibid. 798) — appear to have been district
attorneys. I find nothing through the index (s.v. "attorney," "district,"
"territorial," "United States") to explain them. Districts were important
administratively in both Orleans and Louisiana-Missouri.
303 ibid. 2: 208. The Ordinance empowered him to appoint before the
organization of representative government "such . . . civil officers in each
county or township, as he shall find necessary for the preservation of the
peace and good order in the same (ibid. 43, italics added); and even after
organization of representative government to appoint "all . . . civil officers,
not herein otherwise directed" (ibid.).
304 The Governor relied upon sees. 1, 5, 9 of the act of March 3, 1805 —
ibid. 13: 92. Its grant of power in sec. 1 to "appoint and commission all
officers" was seemingly limited to the militia. The power (sec. 5) to divide
the Territory into districts, and appoint thereto "such . . . civil officers,
as he may deem necessary" was seemingly limited to new areas as Indian
titles should be extinguished, and moreover the quoted words continued:
"whose several powers and authorities shall be regulated and defined by
law." There was no law. However, an analogous office of a district had
existed under Spanish administration, and the act of Congress declared
(sec. 9) that "the laws and regulations in force in the said district" — mean-
ing here District of Louisiana — when the act became effective should remain
in force until altered. The Court's decision rested upon these grounds: (1)
since the Court's jurisdiction embraced the entire Territory, the attorney's
must likewise; (2) there was no law regulating and defining the office of
a district attorney; (3) by act of Governor Harrison an office of attorney
general of the entire Territory existed, and no later act had altered it. See
Carter, Territorial Papers, 13: 259.
cccclxxii
INTRODUCTION
attorney general. This was also rejected by the Court, on the ground
that the situation had changed. The governor's appointing power
was now restricted, the judges said, to districts of the Territory,
because such power was referred to in the new statute. But this
view seems to be erroneous. Under the act of 1804 the judges of
Indiana Territory were to "exercise" in Louisiana the common law
jurisdiction which they exercised at home ; the territorial court es-
tablished in Louisiana in 1805 was to "jwssess the same jurisdiction
which [was] possessed by the judges of the Indiana Territory."
And though it was also provided, as in 1804, that laws and regula-
tions in force in Louisiana when each act took effect, so far as con-
sistent with them, should remain in force until modified by territorial
legislation,303 manifestly the introduction of common law was perma-
nent. The situation was therefore that which was stated by Governor
St. Clair in 1789, unless modified by the act of 1805 itself. The final
argument of the judges', that in that act there was no provision for
the office of attorney general, was therefore without force.306 Con-
siderations other than legal very likely entered into the decision.307
(5) Power to Create Counties and County Seats.
The Ordinance provided that "for the execution of process . . .
the governor [should] make proper divisions [of the territory], and
he [should] proceed from time to time ... to lay out . . . counties
and townships subject however to such alterations as may thereafter
be made by the legislature."308 In a territory that increased in popu-
305 See ibid. 260; also sec. 12 of act of March 26, 1804 and sec. 4 of act
of March 3, 1805 — ibid. 9: 210 and 13: 93 respectively, on nature of the
Court's jurisdiction; sec. 13 of 1804 (ibid. 9: 211) and 9 of 1805 (ibid 13: 94).
3i>6 After rendering the first decision the Court invited Donaldson "to
undertake the Business by appointment of the Court," and when he declined
appointed W. C. Carr (Philbrick, Laics of Indiana Territory, I.H.C. 21,
cclxxv; but see Carter, Territorial Papers, 13: 162 n. 17) as prosecuting
attorney.
307 See ibid, index s.v. "Territorial Governor — conflict with judges,"
"Lucas, J. B. C." and "Easton, Rufus." Some correspondent of Attorney
General Breckinridge attributed to the judges a theory that powers undele-
gated expressly to territorial authorities remained in Congress or the terri-
torial legislature; then that the latter held undelegated appointive powers —
ibid. 324-25. The theory was absurd, but the desire to have such powers
in the legislature (all such powers) was probably common among extreme
Republicans; compare Nathaniel Macon's views — W. H. Smith. St. Clair
Papers, 2: 590-91.
308 Carter, Territorial Papers, 2: 44.
cccclxxiii
ILLINOIS HISTORICAL COLLECTIONS
lation so rapidly as the Northwest Territory, the power to create
counties and fix their seats of administration was one, potentially,
of great political power. The fact that three of the first judges
and legislators of the Territory (and very especially Judge Symmes)
were prominent in the great land developments of the Territory had
made the exercise of the power, from the beginning, a matter of
dangerous potentialities as respected the development of territorial
factions. Add the strong and outspoken Federalist opinions of Gov-
ernor St. Clair and the political fever which ran so high at the
opening of Jefferson's administration, and it was inevitable that this
power of the governor was the one over which the most serious con-
flict was certain to arise.
There was only one question seriously at issue. In every terri-
tory, under plain empowerment by the Ordinance, the governor
created counties and fixed their administrative seats during govern-
ment of the first stage. The questions were two : the first, whether
the Ordinance should be interpreted as meaning that after the estab-
lishment of representative government the governor's powers wholly
ceased ; and the second — assuming a negative answer to the first
question — whether the powers were traditionally so plainly legislative
that further exercise of them by the governor would constitute serious-
ly censurable conduct.
The differences between Governor St. Clair and his opponents
came to a head in 1799 — no doubt by their planning — when he vetoed
eleven bills passed by the first elected legislature of the Territory, of
which six created new counties.11"" Thereafter — in 1800 and 1801—-
he created by proclamation four counties.310 All of these except the
first the legislature seemingly ignored, making no provision for
them.311 The President submitted to the Attorney General the ques-
tion "Whether his exercise of these powers be lawful under the acts
establishing the Northwestern territory."312 After "the utmost at-
309 See his address to the legislature, Dec. 19, in which the reasons are
given — W. H. Smith, St. Clair' Papers, 2: 477-79. "It is, indeed, provided,"
said he, "that the boundaries of counties may be altered by the legislature;
but. . . . They must exist before they can be altered, and the provision is
express that the Governor shall . . . lay them out" (477).
sio Carter, Territorial Papers, 3: 525, 526, 528.
■i]] Worthington so stated in Aug. 1801 of the second and third, shortly
before creation of the fourth — ibid. 171.
■■-> a Ibid. 207.
cccclxxiv
INTRODUCTION
tention" that lie could give to the inquiry he reported that he could
find "no grounds, or principles for a very confident decision in, or
out of the ordinance." Nevertheless, he said,, the power "being once
confessedly in him, & by general terms implying no limitation in
point of time, the authority must be considered as still remaining in
him unless it is taken away, expressly, or by some strong implication,
or by some unforseen change of the subject matter upon which, or
of the circumstances under which the power is exercised." There
was no express limitation ; yet in each of the three preceding para-
graphs a power was given subject to an express limitation. He found
no implied limitation. And the stated reason for which the power
was given — "for the execution of processes civil and criminal" to
make "proper divisions, and from time to time as circumstances
should require" — was equally applicable to the .first and second
stages of government. In short, after sleeping many nights on his
first impressions — in deference to the opinions of many who denied
St. Clair's authority — he remained of the opinion that the power was
in the governor.313
The first charge against St. Clair laid before the President the
same month was that "he [had] usurped legislative powers by the
erection of courts and location of seats of justice by proclamations
on his own sole authority."314 The definition of boundaries had never
been regarded as being, alone, creation of a county. The naming of
its judicial and other administrative personnel had always accom-
panied the description of area. In the form just quoted the issue was
submitted to the President's cabinet. Not one found the charge "es-
tablished." The Attorney General held that even a strict construc-
tion of the Ordinance allowed the governor a power to create a county
and appoint its officers ; but that a liberal construction was required
in order to include the power of fixing the county seat.313
When St. Clair was removed, later in 1802, it was for purely
political reasons.
■"is/bifZ. 208-11— opinion of Feb. 1802.
si* Ibid. 212.
:1i5 See the citations ante n. 300. In Madison's letter communicating to
Governor St. Clair the President's disapprobation of certain of his acts
("in granting to your son an illegal tenure of office, and in accepting your-
self illegal fees") nothing was said of the charge here in question except
that the Governor had "not pursued the construction put by the Executive
on the Ordinance" — ibid. 231.
cccclxxv
ILLINOIS HISTORICAL COLLECTIONS
William Henry Harrison 's political sagacity led him to announce,
in his address to the first legislature of Indiana Territory, that he
construed the Ordinance as leaving the erection of new counties to
the legislature.310 In Illinois a similar policy prevailed. Two days
after creating by proclamation three new counties in 1812, 317 Gov-
ernor Edwards ordered elections for the first general assembly, and
thereafter all counties were created by it, although the governor was
either allowed or specially authorized to commission their civil and
military officers.318
This concludes an examination of territorial administration in
early years, particularly as affected by imperfections of the Ordi-
nance. The facts have been known to many writers who have never-
theless ignored them. Few statutes are perfect ; those of the Ordi-
nance's time were certainly far inferior in clarity to laws of the
present day. But those facts do not at all alter the fact that the
Ordinance was miserably drafted. As an instrument to serve as the
basis of territorial administration there was no greatness in it- — and
in earlier sections it has already been seen that there was little
original greatness in it otherwise.
The preceding introduction, except in its first section, has dealt
with the Ordinance of 1787 and with territorial administration under
it during the first, or nonrepresentative, stage of government — to
which the early settlers of Indiana were subjected as citizens of two,
and those of Illinois as citizens of three, territories successively.
References have been made to later laws, incidents, and illustrations
only for the purpose of clarifying the meaning or emphasizing the
character of the Ordinance's provisions. No attention has been given
to the slow liberalization of territorial government. Slight relaxa-
tions of its illiberalities were made even under government of the
first stage, and that monstrous anachronism itself altogether disap-
peared, within the first half-century after 1787. But reform had then
barely begun; most of the Ordinance's other great illiberalities were
■'fi6 Compare Philbrick, Laws of Indiana Territory (I.H.C. 21), xix.
317 On Sept. 14, 1812 Governor Edwards proclaimed the creation of three
new counties — E. J. James, Territorial Records of Illinois (111. State Hist.
Library Publications, no. 3), 26.
sis Compare ibid, for appointments, and for creation of counties see
jjost, index s.v. "counties."
cccclxxvi
INTRODUCTION
carried over into the organic acts by which different territories—
from the organization of Wisconsin Territory in 1836 onward — were
successively created.519 The story of this continuing political illib-
eralism would, of course, be impertinent to the purposes of this intro-
duction. A reference to even the earliest reforms would be pointless
unless contrasted with the many much more radical changes de-
manded in petitions of the time ; and to recount the latter would be
of little value except as part of an account showing how greatly
realization of the reforms demanded lagged behind progress in the
states.
•;irJ In this sense that Dr. Farrand could unfortunately write correctly
in 1921: "The principles of territorial government today are identical with
those of 1787" — M. Farrand, The Fathers of the Constitution (1921), 77.
"Certain modifications came with time. The veto power of the governor
was limited, the people received the right to elect their councilmen and
their delegates [delegate] to Congress by direct vote; and the legislature was
authorized to hold regular sessions, with which the governor might not inter-
fere. But all the important executive and judicial officers continued to be ap-
pointed from without; the authority which gave validity to measures of the
territorial government was derived solely from an act of Congress; and the
national legislature, if it chose, might interfere in local affairs even to the
extent of disallowing territorial laws" — J. D. Hicks, The Constitutions of
the Northioest States (1923, University of Nebraska Studies, vol. 23), 6.
cccclxxvii
THE LAWS OF
ILLINOIS TERRITORY
1809-1818
Laws of the
Territory of Illinois
1809-1811
(Printed from the Bulletin of the Illinois State Historical Library, Volume I,
No. 2. June 1, 1906. This is a revised and enlarged edition of Publication
No. 2 of the Illinois State Historical Library.)
TABLE OF CONTENTS.
Page
The Adoption of the Indiana Laws 5
An Act Repealing Certain Laws and Parts of Laws 5
An Act Concerning the Courts of Common Pleas and County Courts. . . 6
An Act to Regulate the Time of Holding the General Court 7
An Act in Addition to an Act, Entitled, "An Act Repealing Certain Laws
and Parts of Laws" 8
An Act Concerning the General Court 8
A Law Respecting Arrearages Due the Former Sheriff 11
An Act Concerning County Courts 11
A Law to Repeal an Act Entitled, "A Law to Alter and Repeal Certain
Parts of an Act, Entitled, 'A Law to Regulate County Levies;' " and
to Enforce the Collection of the County Levies for the Year Eigh-
teen Hundred and Nine 12
A Law to Prevent Frauds and Perjuries. Adopted from the Kentucky
Code 14
An Act Concerning Certain Fees in the General Court 16
An Act Appropriating Fines, Amerciaments, Penalties, Forfeitures and
Taxes Imposed on Law Process to the Use of the Territorial Govern-
ment 17
An Act to Authorise the Guarding of County Jails. Adopted from the
Kentucky Code 18
A Law Giving the Sheriff of the County of Randolph Further Time to
Make Out and Deliver a List of Persons and Property Liable to Tax-
ation in the Said County for the Year Eighteen Hundred and Nine
and to Give Him Further Time for the Collection Thereof 18
An Act Concerning Appeals from the Judgment of Justices of the Peace
to the County Courts. Adopted from the Kentucky Code 19
An Act Concerning the Clerks of County Courts 21
An Act Repealing Part of a Law, Entitled, "A Law for the Prevention
of Vice and Immorality" 22
An Act Concerning Fornication and Adultery. Adopted from the
Georgia Code 22
An Act Regulating the Manner of Taking Depositions. Adopted from
the Georgia Code 23
An Act Prescribing the Duty of Sheriffs in a Certain Case. Adopted
from the Georgia Code 24
An Act to Repeal Part of an Act of the General Assembly of the In-
diana Territory, Passed the Seventeenth Day of September, in the
Year, One Thousand Eight Hundred and Seven, Entitled, "An Act
Respecting Crimes and Punishments" 25
An Act Repealing Part of an Act, Entitled, "An Act Concerning Appeals
from the Judgment of Justices of the Peace to the County Courts" . . 25
A Law Concerning Grand Jurors. Adopted from the Kentucky Code 26
An Act to Prevent Unlawful Gaming. Adopted from the Virginia Code . . 27
An Act Repealing Parts of Certain Acts 35
An Act to Suppress Duelling. Adopted from the Virginia Code 36
A Law Concerning Advertisements 38
An Act Repealing so Much of the Law for Regulating County Levies, as
Imposes a Tax on Neat Cattle 39
An Act Concerning Courts of Common Pleas 39
An Act Concerning the Powers of the Governor of the Territory of
Illinois. Adopted from the Constitution of the State of Pennsylvania 40
An Act Concerning Occupying Claimants of Land. Adopted from the
Kentucky Code 41
A Law Concerning Militia. Adopted from the Militia Law of South
Carolina 45
A Law Concerning Militia. Adopted from the Kentucky Code 45
A Law Altering the Time of Holding the General Court at Cahokia. . . 46
An Act to Repeal an Act, Entitled, "An Act to Encourage the Killing
of Wolves" 47
LAWS OF THE TERRITOEY OF ILLINOIS,
1809-1811*
Illinois Territory/
13th June, 1809.
This day Ninian Edwards, Governor of the Illinois Territory, Alex-
ander Stuart and Jesse B. Thomas, Judges in and over the Territory
aforesaid, met at the home occupied by Mr. Thomas Cox in the
town of Kaskaskia, and after mature deliberation, they hereby re-
solved as their opinion that the laws of Indiana Territory of a gen-
eral nature and not local to that Territory are still in force in this
Territory as they were previous to the first day of March last.
Ninian Edwards,
Alexr. Stuart,
Jesse B. Thomas.
An Act repealing certain laivs and parts of laws.
Be it enacted by the Governor and Judges of the Illinois Terri-
tory, and it is hereby enacted by the authority of the same: That
the laws and parts of laws hereinafter particularly enumerated and
expressed be the same and are hereby repealed, to-wit:
The act to organize a court of chancery passed by the General
Assembly of the Indiana Territory on the seventeenth day of Sep-
tember, eighteen hundred and seven.
So much of the third section of the act for the appointment of
justices of the peace within the several counties of the Territory
and prescribing their duties and powers therein, passed by the Gen-
eral Assembly of the Indiana Territory on the seventeenth day of
September, eighteen hundred and seven, as makes it the duty of the
justices of the peace to punish assaults and batteries.
So much of the sixth section of the act regulating the admission
and practice of attorneys and counsellors at law passed by the Gen-
* In this edition of the laws the clerk's copy for Randolph County has
been followed and all variant readings of the copy printed in the Louisiana
Gazette, St. Louis, have been noticed in the footnotes or inserted in brackets
in the text. The punctuation and capitalization of the printed copy are more
in accordance with modern standards. The language and orthography are
unaltered. The order of the laws followed is strictly chronological, and does
not agree with that of the printed copy and of the "Executive Register."
(See Introduction to Bulletin of the Illinois State Historical Library, Vol. I,
No. 2.)
i Louisiana Gazette, Feb. 15, 1810 . "The following LAWS have been
adopted by the Governor and Judges of the Illinois Territory."
6 ILLINOIS HISTORICAL COLLECTIONS
eral Assembly of the Indiana Territory on the seventeenth day of
September, eighteen hundred and seven, as prohibits the admission
of attorneys and counsellors at law to practice in the courts in this
Territory who are not residents thereof.
The third and fourth sections of the act in addition to an act en-
titled, "An act regulating the practice in the general court, courts of
common pleas and for other purposes," passed by the General As-
sembly of the Indiana Territory on the twenty fifth day of October,
eighteen hundred and seven.1
[And the sixth section of the act organizing courts of common
pleas, passed by the General Assembly of the Indiana Territory on
the seventeenth day of September, eighteen hundred and seven].
The foregoing is hereby declared to be a law of the Territory and
to take effect and be in force from the date thereof.
In testimony whereof, we, Ninian Edwards, Governor, and Alex-
ander Stuart, and Jesse B. Thomas, Judges, have hereunto signed
our names at Kaskaskia, the sixteenth day of June, in the year of
our Lord one thousand eight hundred and nine, and of the Inde-
pendence of the United States the thirty-third.
Ninian Edwards,
Alexr. Stuart,
Jesse B. Thomas.
An Act concerning the courts of common pleas and county courts.
Be it enacted by the Governor and Judges of the Illinois Terri-
tory, and it is hereby enacted by the authority of the same: That all
the jurisdiction over suits and process of a civil and criminal nature
heretofore vested and exercised by the court of common pleas shall
hereafter be vested in, [andj exercised and discharged by a judge of
the general court.
Sec. 2. There shall be holden in each county two terms of the
common pleas at which one of the judges of the general court (agree-
ably to arrangement between themselves) shall preside. The courts
so to be holden2 in the county of Randolph shall be holden in the town
of Kaskaskia on the second Mondays in April and September, in each
year, and shall continue until the business of the court is finished.
The court to be holden in the county of St. Clair shall be held in the
"eighteen hundred and eight."
"The court to be holden"
laws of 1809-1811 7
town of Cahokia on the fourth Mondays in April and September, in
each year, and shall continue until the business of the court is
finished.
Sec. 3. And be it [further] enacted by the authority aforesaid:
That the justices of the peace for the respective counties, or any three
or more of them, shall be and they are hereby constituted a county
court who shall have, possess and exercise all jurisdiction (except
over suits and process of a civil and criminal nature) that has hither-
to been possessed and exercised by the court of common pleas, and
the said county court shall hold six terms in each year in their re-
spective counties at the same place, at which the court of common pleas
are by this act required to be holden, and at the times heretofore pre-
scribed by an act, entitled, ' ' An • act organizing courts of common
pleas," passed by the Legislature of the Indiana Territory on the
seventeenth day of September, in the year eighteen hundred and seven.
Sec. 4. Be it [further] enacted by the authority aforesaid: That
so much of any law as requires the appointment of three judges to
the court of common pleas and all other laws and1 parts of laws re-
pungent to this act or within the perview thereof shall and the same
is hereby repealed.
The foregoing is hereby declared to be a law of the Territory, and
to take effect and be in force from the date thereof.
In testimony whereof, we, Ninian Edwards, Governor, and Alex-
ander Stuart, and Jesse B. Thomas, Judges, have hereunto signed
our names at Kaskaskia, the sixteenth day of June, in the year of
our Lord eighteen hundred and nine, and of the Independence
of the United States the thirty-third.
Ninian Edwards,
Alexr. Stuart,
Jesse B. Thomas.
An Act to regulate the time of holding the general court.
Be it enacted by the Governor and Judges of the Illinois Terri-
tory and it is hereby enacted by the authority of the same:2 That
the general court shall be held two terms yearly, and every year in
the town of Kaskaskia, to commence on the last Mondays in March
and August and to continue until the business is finished.
1 "or parts of law or laws"
- "aforesaid" instead of "of the same."
8 ILLINOIS HISTOEICAL COLLECTIONS
The foregoing is hereby declared to be a law of the Territory to
take effect and be in force from the date thereof.
In testimony whereof, we, Ninian Edwards, Governor, and Alex-
ander Stuart and Jesse B. Thomas, Judges, have hereunto signed
our names, at Kaskaskia, the sixteenth day of June in the year of
our Lord eighteen hundred and nine, and of the Independence
of the United States the thirty-third. XT „
Ninian Edwards,
Alexr. Stuart,
Jesse B. Thomas.
An Act in addition to an act, entitled, "An act repealing certain
laws and parts of laws."
Sec. 1. Be it enacted by the Governor and Judges of the Illinois
Territory and it is hereby enacted by the authority of the same:
That the second section of a law, entitled, "An act regulating the
general court," passed by the General Assembly or Legislature of
the Indiana Territory on the seventeenth day of September, eighteen
hundred and seven, and also an act, entitled, "An act to prevent un-
necessary delays in causes after issue joined," passed by the Legisla-
ture of the Indiana Territory on the seventeenth day of September,
eighteen hundred and seven, be and the same are hereby repealed.
The foregoing is hereby declared to be a law of the Territory to
take effect and be in force from the date thereof.
In testimony whereof, we, Ninian Edwards, Governor, and Alex-
ander Stuart and Jesse B. Thomas, Judges, have hereunto signed
our names, at Kaskaskia, the nineteenth day of June in the year of
our Lord eighteen hundred and nine, and of the Independence
of the United States the thirty-third. ,T _,
Ninian Edwards,
Alexr. Stuart,
Jesse B. Thomas.
An Act concerning the general court.
Sec. 1. Be it enacted, by the Governor and Judges of the Illinois
Territory and it is hereby enacted by the authority of the same: That
there shall annually be held four terms of the general court, two of
which shall be held in the town of Kaskaskia, in the county of Ran-
dolph, on the second Mondays of April and September, and two shall
laws of 1809-1811 9
be held in Cahokia, in the county of St. Clair, on the fourth Mondays
in April and September.
Sec. 2. The general court shall have jurisdiction, both original
and final, over all suits and process of a civil and criminal nature,
that was heretofore vested in, and exercised by the general court, the
circuit courts and the courts of common pleas under any law or laws
of the Legislature of the Indiana Territory, except in cases of appeal
from the judgment of a justice of the peace where the sum does not
amount to twenty dollars, exclusive of costs.1
Sec. 3. All suits and process of a civil and criminal nature shall
be tried and determined in the county in which such suit or process
originated.
Sec. 4. For the convenience of the citizens of this Territory it
shall be the duty of the clerk of the general court to keep one branch
of his office at Kaskaskia and the other at Cahokia. All the business
that pertains to the duty of clerk which may originate in the county
of Randolph shall be transacted and confined to the office at Kaskas-
kia, and all the business that pertains to the duty of clerk which may
originate in the county of St. Clair shall be transacted in and con-
fined to the office at Cahokia.
Sec. 5. It shall be the duty of the clerk of the general court to
superintend both branches of his office. He shall have power to ap-
point as many deputies as he may find necessary and shall be answer-
able for their misconduct ; and all such deputies shall take a similar
oath to that prescribed for the clerk.
Sec. 6. And whereas, there are many suits now depending, which
originated in the courts of common pleas, and of which the general
court by this law has jurisdiction : Be it enacted by the authority
aforesaid: That the clerk of the general court shall promptly and
without delay demand all the papers, exhibits, etc., in each of such
suits of the clerks of the respective courts of common pleas, and it
shall be their duty to deliver the same accordingly ; and when the
papers are thus delivered it shall be the duty of the clerk of the gen-
eral court immediately so to arrange such causes on the docket as
that they may come on for trial with the utmost dispatch and in the
same order that they ought to have stood in the court of common
pleas, had not this law been passed.
i The printed copy is very faulty, thus: "in each of such suits of the
clerks of the respective courts of common pleas, and it shall be their duty
of the clerk of the general court immediately, so to arrange, etc."
10 ILLINOIS HISTOKICAL COLLECTIONS
Sec. 7. Be it further enacted: That all process which has here-
tofore issued, returnable to the courts of common pleas or general
court, shall be considered as properly returnable to the first sessions
of the general court in the counties in which such process respect-
ively issued, and all bails, recognizances and every kind of business,
which may have been transacted under the existing laws that would
have been obligatory in the courts of common pleas or general court,
shall be obligatory and cognizable in like manner in the general
court, as regulated by this act.
Sec. 8. The sheriff of Randolph county shall attend the general
court at its terms in Kaskaskia, and shall execute all process and per-
form all those duties that belong to his office that may originate in
the county of Randolph ; and the sheriff of St. Clair county shall
attend the general court at its terms in Cahokia, and shall execute
all process and perform all those duties that belong to his office that
may originate in the county of St. Clair.
Sec. 9. The clerks of the respective courts of common pleas shall,
when thereto required, deliver to the clerk of the general court all
other papers, records, etc., belonging to their respective offices, which,
when delivered, shall by the clerk of the general court be kept sepa-
rate and apart from the papers belonging to suits now pending in
the said courts of common pleas.
Sec. 10. Be it further enacted by the authority aforesaid: That
the first and second sections of a law passed on the sixteenth day of
June, eighteen hundred and nine, entitled, "An act concerning courts
of common pleas and county courts, ' ' and all other laws and parts of
laws repugnant to this law, shall be, and the same are, hereby re-
pealed.
The foregoing is hereby declared to be a law of the Territory, to
take effect and be in force from the date therof .
In testimony whereof, we, Ninian Edwards, Governor, and Alex-
ander Stuart, Obadiah Jones and Jesse B. Thomas, Judges, have here-
unto signed our names, at Kaskaskia, the twentieth day of July, in
the year of our Lord one thousand eight hundred and nine, and of the
Independence of the United States the thirty-fourth.
Ninian Edwards,
Alexr. Stuart ;
A true copy, signed, attest, Obadiah Jones,
William Arundel, Clerk. Jesse B. Thomas.
LAWS OF 1809-1811 11
A Law respecting arrearages due the former sheriff.
Whereas it is represented to this Legislature that the late sheriff
of the county of Randolph has neglected to collect all the county
levies in the said county and that several arrearages are now due to
him.
Be it therefore enacted: That James Gilbreath, late sheriff of the
said county of Randolph, shall at the next county court to be
held1 for the said county deliver and produce on oath to the said
court a full, just and true account of all the sums which he has col-
lected, or ought to have collected, for the use of the said county,
noting therein the names of delinquents and the sums respectively
due ; and he shall also at the same time deliver on oath a true and per-
fect account of all monies by him paid for the use of the said county,
stating therein the amounts paid to whom and by what authority,
and produce to the said court his original vouchers and receipts there-
fore. And the said county court on the said sheriffs performing the
requisits by this act directed shall thereupon give him a warrant
under their hands and seals, authorising him to receive the amount
of the said arrearages, and all fees due to him at any time within six
months from the date thereof, by virtue whereof the said late sheriff
shall have the same power to collect the said arrearages in the same
manner he might have done under the laws of the Territory, if he had
proceeded to collect the same in the time required by law.
The foregoing is hereby declared to be a law of the Territory to
take effect and be in force from the date thereof.
In testimony whereof, we, Ninian Edwards, Governor, and Alex-
ander Stuart, Obadiah Jones and Jesse B. Thomas, Judges, have here-
unto signed our names the twentieth day of July, in the year of
our Lord one thousand eight hundred and nine, and of the
Independence of the United States thirty-fourth.
Ninian Edwards,
Alexr. Stuart,
A true copy, attest, Obadiah Jones,
"William Arundel, Clerk. Jesse B. Thomas.
An Act concerning county courts.
Be it enacted by the Governor and Judges of the Illinois Terri-
tory and it is hereby enacted by the authority of the same: That;
i "holden" for "held."
12 ILLINOIS HISTORICAL COLLECTIONS
Sec. 1. The county courts for the county of Randolph shall be
held in the town of Kaskaskia, and the county court for the county
of St. Clair shall be held in the town of Cahokia.
Sec. 2. Be it further enacted: That the county courts shall have
jurisdiction (in the several counties) of appeals from judgments of
justices of the peace where the judgment shall not exceed twenty
dollars besides costs.
Sec. 3. Be it further enacted: That the county courts shall sit
six days at each term, if the business before the court shall require it.
The foregoing is hereby declared to be a law of the Territory to
take effect and be in force from the date thereof.
In testimony whereof, we, Ninian Edwards, Governor, and Alex-
ander Stuart, Obadiah Jones and Jesse B. Thomas, Judges, have here-
unto signed our names, at Kaskaskia, the twentieth day of July, in
the year of our Lord one thousand eight hundred and nine, and of the
Independence of the United States the thirty-fourth.
Ninian Edwards,
Alexr. Stuart,
A true copy, attest, Obadiah Jones,
William Arundel, Clerk. Jesse B. Thomas.
A Law to repeal an act entitled, "A law to alter and repeal certain
parts of an act entitled, 'A law to regulate county levies,' " and
to enforce the collection of the county levies for the year eighteen
hundred and nine.
Sec. 1. Be it enacted by the Governor and Judges of the Illinois
Territory, and it is hereby enacted by the authority of the same:
That the act passed by the Indiana Legislature, entitled, "An act to
alter and repeal certain parts of an act, entitled, 'A law to regulate
county levies,' " shall be and the same is hereby repealed.
Sec. 2. And whereas provision ought to be made by law for the
collection of county levies for the present year; Be it therefore en-
acted: That the sheriffs of the several counties in this Territory
shall immediately proceed to receive the lists of all and every species
of property made chargeable with taxes by this act and by the law of
the Territory, entitled, "A law to regulate the county levies," in the
manner required by said law, and that the said sheriffs shall make out
and deliver such lists to the clerks of their respective county courts
on, or before, the eighteenth day of September next; and the said
clerks shall make out a true transcript thereof, which they shall lay
laws of 1809-1811 13
before their next succeeding county courts respectively, for their ex-
amination and allowances, who shall have all the powers to levy a tax
upon their respective counties, which has been heretofore vested in
the court of common pleas ; and it shall be the duty of the sheriffs of
the respective counties to proceed to the collection thereof within the
times prescribed by law.
Sec. 3. Be it further enacted: That so much of the eleventh
section of the said law as requires the courts of common pleas to ap-
point two free holders in each township to value and appraise such
house [in town], town lot, town out-lot and mansion house in the
county, and all water and windmills shall be and the same is hereby
repealed ■ and that the sheriffs of the respective counties shall proceed
to appraise and value the same in the same manner, as the said free-
holders were by the said law required to do ; and the said county
courts, at the time when they are by this law required to lay the
county tax, shall levy a sum not exceeding thirty cents on each hun-
dred dollars of such appraised valuation.
Sec. 4. Be it further enacted: That so much of the thirteenth
section of the said law as authorises sheriffs of the several counties
to issue certificates to sell merchandize, shall be and the same is here-
by repealed ; and that from henceforth every possessor of merchan-
dize shall, previously to offering the same for sale by himself or agent,
pay to the sheriff as treasurer the sum of fifteen dollars for the use of
the county and take his receipt therefor, which he shall take to the
clerk of the county court who shall thereupon file the same and de-
liver to the person producing the same a certificate in the form pre-
scribed by the said law, altering it, howsoever, so far as to mention
that the tax for such certificate had been paid to the sheriff, as it ap-
peared by his receipt delivered to the said clerk ; and the said sheriffs
and clerks shall keep separate accounts of the monies received and
certificates issued, noting therein the dates when paid and issued and
to whom, which accounts they shall deliver and produce to the county
courts, when required.
Sec. 5. The sheriffs shall settle their accounts annually with their
county courts at the times heretofore appointed by law ; and at the
time of such settlement it shall be their duty respectively to make a
fair statement of all the money by them received, from whom, and on
what account, and a like statement of the money by them expended,
by virtue of any law or order of the court, which written statement,
14 ILLINOIS HISTORICAL COLLECTIONS
after settlement with the court, shall be recorded. Be it. therefore
[further] enacted by the authority aforesaid: That such settlement
or settlements shall not be a bar to a recovery thereafter against any
sheriff, or sheriffs, where it shall clearly appear that he or they have
been guilty of fraud or error in such settlement.
Sec. 6. The county courts in each county respective^ shall at the
same time, at which they are by this law required to levy the tax
upon other objects of taxation, levy a tax on located lands not exceed-
ing ten cents in the hundred dollars valuation, as made in conformity
to a law of the Indiana Territory for the collection of the territorial
taxes, which said tax shall be collected by the said sheriffs respec-
tively at the same time, they are by this law required to collect the
other county taxes ; and the said sheriffs shall have the same powers
to dispose of the whole, or so much of the said land, as shall, in
default of payment, be sufficient to pay the said taxes and cost in the
same manner as he is authorised to do so by the law of the Indiana
Territory for the collection of the territorial tax : Provided, that the
whole of the tax collected under this section shall be applied exclu-
sively to county buildings.
Sec. 7. The sheriffs shall be allowed, in full compensation for
their various duties under this law and the said law to regulate
county levies, ten per cent upon all sums by them collected and paid.
The foregoing is hereby declared to be a law of the Territory to
take effect and be in force from the date thereof.
In testimony whereof, we, Ninian Edwards, Governor, and Alex-
ander Stuart, Obadiah Jones and Jesse B. Thomas, Judges, have here-
unto signed our name, at Kaskaskia, the twentieth day of July, in
the year of our Lord one thousand eight hundred and nine, and of the
Independence of the United States the thirty-fourth.
Ninian Edwards,
Alexr. Stuart,
A true copy, attest, Obadiah Jones,
William Arundel, Clerk. Jesse B. Thomas.
A Law to prevent frauds and perjuries. Adopted from the
Kentucky Code. '■
Sec. 1. Be it enacted by the Governor and Judges of the Illinois
Territory, and it is hereby enacted by the authority of the same:
That no action shall be brought whereby to charge any executor or
administrator, upon any special promise, to answer any debt or dam-
laws of 1809-1811 15
ages [out] of his own estate, or whereby to charge the defendants
upon an}' special promise to answer for the debt, default or miscar-
riage of another person, or to charge any person upon any agreement
made upon consideration of marriage, or upon any contract for the
sale of lands, tenements or hereditaments, or the making any lease
for a longer term than one year, or upon any agreement which is not
to be performed within the space of one .year from the making
thereof, unless the promise or agreement, upon which such action
shall be brought, or some memorandum or note thereon, shall be in
writing and signed by the part}7 to be charged therewith or some
other person by him thereunto lawfully authorised.
Sec. 2. Every gift, grant or conveyance of lands, tenements or
hereditaments, goods or chattels, or of any rent, common or profit of
the same, by writing or otherwise, and every bond, suit, judgment or
execution had, or made and contrived of malice, fraud, covin, collusion
or guile to the intent or purpose to delay, hinder or defraud creditors
of their just and lawful actions, suits, debts, accounts, damages,
penalties or forfeitures, or to defraud or deceive those who shall
purchase the same lands, tenements or hereditaments, or any rent,
profit or commodity out of them, shall be from thenceforth deemed
and taken (only as against the person or persons, his, her, or their
heirs, successors, executors, administrators or assigns, and every of
them, whose debts, suits, demands, estates and interest by such guile-
ful and covinous devices and practices as aforesaid shall or might be
in anywise disturbed, hindered, delayed or defrauded) to be clearly
and utterly void; any pretence, color, feigned consideration, expressing
of use or any other matter or thing to the contrary notwithstanding ;
and, moreover, if a conve}rance be of goods and chattels and be not
on consideration deemed valuable in law, it shall be taken to be
fraudulent within this act; unless the same be by will duly proved
and recorded ; or by deed in writing, acknowledged or proved, if the
same deeds include lands also, in such manner as conveyances of
land are by law directed to be acknowledged, or proved ; or if it be of
goods and chattels only, then acknowledged or proved by two wit-
nesses in any court of record in the county, wherein one of the parties
lives, within eight months after the execution thereof ; or unless pos-
session shall really and bona fide remain with the donee ; and in like
manner where any loan of goods and chattels shall pretended to have
been made to any person, with whom, or those claiming under him,
16 ILLINOIS HISTORICAL COLLECTIONS
possession shall have remained by the space of five years, without
demand made or pursued by due process of law, on the part of the
pretended lender; or where any reservation or limitation shall be pre-
tended to have been made of an use or property by way of condition,
reversion, remainder or otherwise in goods and chattels, the posses-
sion whereof shall have remained in another as aforesaid ; the same
shall be taken as to the creditors and purchasers of the persons afore-
said so remaining in possession to be fraudulent within this act, and
that the absolute property is with the possession, unless such loan,
reservation or limitation of use or property were declared by will or
deed in writing proved and recorded as aforesaid.
Sec. 3. This act shall not extend to any estate or interest in any
lands, goods or chattels or any rents, common or profit out of the
same, which be upon good consideration and bona fide law fully con-
veyed or assured to any person or persons, bodies politic or corporate.
The foregoing is hereby declared to be a law of the Territory to
take effect and be in force from the date thereof.
In testimony whereof, we, Ninian Edwards, Governor, and Alex-
ander Stuart, Obadiah Jones and Jesse B. Thomas, Judges, have here-
unto set our names, at Kaskaskia, the twenty-first day of July in the
year of our Lord one thousand eight hundred and nine, and of the
Independence of the United States the thirty-fourth.
Ninian Edwards,
Alexr. Stuart,
A true copy, attest, Obadiah Jones,
William Arundel, Clerk. Jesse B. Thomas.
An Act concerning certain fees in the general court.
Sec. 1. Be it enacted by the Governor and Judges of the Illinois
Territory and it is hereby enacted by the authority of the same:
That all suitors and others having business to do in the general court
shall pay the same fees (for the use of the territorial government)
as have heretofore been paid by suitors and others for the like ser-
vices performed by the courts of common pleas and applied to the
use of their respective counties.
Sec. 2. And be it further enacted by the authority aforesaid:
That the offices of government shall have the same power to collect
such fees, as hath heretofore been authorised by law, for the recovery
and collection of the like fees, imposed by the courts of common pleas
for [the use of] their counties respectively, and the officer receiving
laws of 1809-1811 17
the same shall be liable to be proceeded against as in other cases of
the like nature.
The foregoing is hereby declared to be a law of the Territory to
take effect and be in force from the date thereof.
In testimony whereof, we, Ninian Edwards, Governor, and Alex-
ander Stuart, Obadiah Jones and Jesse B. Thomas, Judges, have here-
unto set our names, the twenty-first day of July in the
year of our Lord one thousand eight hundred and nine, and of the
Independence of the United States the thirty-fourth.
Ninian Edwards,
Alexr. Stuart,
A true copy, attest, Obadiah Jones,
William Arundel, Clerk. Jesse B. Thomas.
An Act appropriating fines, amerciaments, penalties, forfeitures
and taxes imposed on law process to the use of the territorial
government.
Sec. 1. Be it enacted by the Governor and Judges of the Illinois
Territory and it is hereby enacted by the authority of the same:
That all taxes imposed by law process, and all fines, amerciaments,
forfeitures and penalties imposed or recorded in the general court
shall constitute a fund to defray the expenses of the territorial gov-
ernment.
Sec. 2. That the sheriff of each county shall settle their accounts
with the general court at the spring term annually, in the same man-
ner and subject to their same conditions as is prescribed by law for the
settlement of their accounts by the county court.
Sec. 3. Be it further enacted: That the governor and Judges, or
a majority of them, shall have power to draw warrants to defray ex-
penses incurred by the territorial government, whether they be legal
or contingent, upon any person or persons having in his or their po-
session any money by this act appropriated to the use of the Terri-
tory.
The foregoing is hereby declared to be a law of the Territory to
take effect and be in force from the date thereof.
In testimony whereof, we, Ninian Edwards, Governor, Alex-
ander Stuart, Obadiah Jones and Jesse B. Thomas, Judges, have here-
unto signed our names, atKaskaskia, the twenty-first day of July in the
18 ILLINOIS HISTORICAL COLLECTIONS
year of our Lord one thousand eight hundred and nine, and of the
Independence of the United States the thirty-fourth.
Ninian Edwards,
Alexr. Stuart,
A true copy, attest, Obadiah Jones,
William Arundel, Clerk. Jesse B. Thomas.
An Act to authorise the guarding of county jails. Adopted from
the Kentucky code.
Sec. 1. Be it enacted, by the Governor and Judges of the Illinois
Territory and it is hereby enacted by the authority of the same:
That if for want of a sufficient jail in any county in which a general
court is held, it shall [be] necessary to impress or hire guards for the
safe-keeping of any prisoner in the said jail, the general court, or a
judge thereof in vacation, shall have full power and authority to order
the jailor to impress or hire such guards, and the said court shall
certify to the court the amount of the allowance to the said guard
which it shall be the duty of the justices of the said county court to
order to be paid out of the county levy.
Sec. 2. To prevent doubts what shall be taken to be a sufficient
jail: Be it further enacted by the authority aforesaid: That,
when the judges of the general court shall receive a county jail for
the county and cause the same to be entered on their record, the
county thereafter shall be no longer chargeable for the expense of the
guards.
The foregoing is hereby declared to be a law of the Territory to
take effect and be in force from the date thereof.
In testimony whereof, we, Ninian Edwards, Governor, and Alex-
ander Stuart, Obadiah Jones and Jesse B. Stuart [sic], Judges, have
hereunto signed their names, at Kaskaskia, the twenty-second day of
July, in the year of our Lord one thousand eight hundred and nine,
and of the Independence of the United States the thirty-fourth.
Ninian Edwards.
Alexr. Stuart,
A true copy, attest, Obadiah Jones,
William Arundel, Clerk. Jesse B. Thomas.
A Law giving the sheriff of the county of Randolph further time to
make out and, deliver a list of persons and property liable to tax-
ation in the said county for the year eighteen hundred and nine
and to give him further time for the collection thereof.
laws of 1809-1811 19
Whereas the time given to the sheriff of the county of Randolph
by a law entitled, "A law to levy, assess and collect the county rates
and levies for the year eighteen hundred and nine," has been found
too short. For remedy whereof:
Sec. 1. Be it enacted by the Governor and Judges of the Illinois
Territory and it is hereby enacted by the authority of the same:
That the sheriff of the said county of Randolph shall have further
time until the twenty-fifth day of this instant December to make out
and deliver to the clerk of the county court of the said county com-
plete lists and vouchers of persons and property liable to taxation in
the said county for the year, eighteen hundred and nine ; which lists
the clerk of the said court shall file in his office, and make a tran-
script thereof, on, or before, the fourth day of January next and de-
liver the same to the justices of the county court (who shall meet
together on that day at the court-house in Kaskaskia) for their exam-
ination and allowance. The bill of tax, being allowed by the said
court, they shall thereto annex their warrant under the hand and seal
of the presiding justice ; and the clerk of the said court shall, five days
thereafter, deliver the same to the sheriff for collection ; and the said
sheriff shall on, or before, the tenth day of March next collect the
amount of the tax so laid.
Sec. 2. And be it further enacted: That the said sheriff shall
proceed in the collection of the said taxes, and shall have the same
power and authority to enforce the payment thereof as are provided
by law.
This act shall be in force from the passage thereof.
In testimony whereof, we, Ninian Edwards, Governor, and Alex-
ander Stuart, Obadiah Jones and Jesse B. Thomas, Judges, have here-
unto signed our names, at Kaskaskia, the twenty-second day of Decem-
ber in the year of our Lord one thousand eight hundred and nine, and
of the Independence of the United States the thirty-fourth.
Ninian Edwards,
Alexr. Stuart,
A true copy, attest, Obadiah Jones,
William Aeundel, Clerk. Jesse B. Thomas.
An Act concerning appeals from the judgment of justices of the
peace to the county courts. Adopted from the Kentucky Code.
Be it enacted by the Governor and Judges of the Illinois Terri-
tory, and it is hereby enacted by the authority of the same:
20 ILLINOIS HISTORICAL COLLECTIONS
Sec. 1. All judgments given by any such justice or justices, when
the amount thereof shall not exceed four dollars sixteen cents and
two-thirds of a cent, shall be final. In all judgments, where the
amount thereof shall exceed four dollars sixteen cents and two-thirds
of a cent, the party against whom such judgment shall be given shall
have a right to appeal from the same to the next county court to be
held for the county, wherein the judgment was rendered: Provided,
there be ten days between granting the judgment from which the
appeal is made and the sitting of the court. Whereupon the justice
or justices, who gave such judgment, shall suspend all further pro-
ceedings thereon, and shall return the papers and the judgment he
had given to the clerk of the said court ; and the said court shall
thereupon, at their next session, hear and determine the same in a
summary way, without pleading in writing, according to the justice
of the case ; unless the said court, for good cause to them shown,
shall continue the same to the next court, beyond which second court
such appeal upon no pretense shall be continued, and execution
may be taken out on a judgment given by said court on such appeal
in the same manner as if the cause had been originally instituted in
the said court ; and in all cases when any party may desire to appeal
from judgment of a justice pursuant to this act, he shall receive
from the justice a copy of such judgment, and produce the same to
the clerk of the county court, who shall enter into a bond in the office
of such clerk in a penalty double the sum of such judgment with
security, who shall be approved of by the justice from whose judg-
ment the appeal is made. Such bond shall be conditioned for the
payment of the debt and costs in case the judgment shall be con-
firmed on the trial of the appeal. Upon the execution of such bond,
the clerk shall certify the same to the magistrate and constable,
enjoining further proceedings, and issue a summons to the appellee
to appear at the court to which the appeal is returned, noting the day
the same shall be set for trial by the clerk. The constable shall
summon the appellee, his agent or attorney, if within the county,
which summons shall be executed ten days before the court wherein
the same shall be tried.
Sec. 2. Where the appellee shall reside in another county, the
clerk of the court, to which the appeal is made, shall have power and
authority to issue a summons to cause such appellee to appear before
the court ; which summons shall be executed by the appellant, or
laws of 1809-1811 21
some other person for him or the appellee, and satisfactory proof of
the service shall be made to the court to which the summons shall be
returned; and if the appellant shall neglect to execute or cause to be
executed such summons on the appellee, before the second court after
praying an appeal, the judgment of the justice shall stand confirmed.
Sec. 3. It shall be the duty of the justice, who gave the judg-'
ment, to lodge with the clerk at, or before, the next court any papers
produced and read on the trial before him ; and if no papers, to cer-
tify the same to the clerk noting therein all the costs. The clerk shall
docket the same in order. The court shall proceed and determine
the appeal in a summary way at their next court and give such judg-
ment as to them shall seem just with respect to the costs as well as
the debt ; but may grant a continuance, if they deem it right, to the
next term but not longer ; and in all appeals from the judgment of a
single justice, the parties shall have the benefit of all legal testimony
that can be produced.
The foregoing is hereby declared to be a law of this Territory, and
to take effect from the date thereof.
In testimony whereof, we, Ninian Edwards, Governor, and Jesse B.
Thomas, Alexander Stuart and Obadiah Jones, Judges, have here-
unto signed our names, at Kaskaskia, the twenty-sixth day of January,
in the year of our Lord one thousand eight hundred and ten, and of the
Independence of the United States the thirty-fourth.
Ninian Edwards,
Alexr. Stuart,
A true copy, attest, Obadiah Jones,
William Arundel, Clerk. Jesse B. Thomas.
An Act concerning the clerks of the county courts.
Be it enacted by the Governor and Judges of the Illinois Terri-
tory, and it is hereby enacted by the authority of the same: That all
duties hitherto required by law to be performed by the clerks of the
courts of common pleas, shall be performed by the clerks of the
county courts, except those which necessarily belong to the clerk of
the general court by virtue of the duties which are assigned to him,
any law to the contrary notwithstanding.
The foregoing is hereby declared to be a law of the Territory and
to take effect from the date thereof.
In testimony whereof, we, Ninian Edwards, Governor, and Alex-
ander Stuart and Jesse B. Thomas, Judges, have hereunto signed
22 ILLINOIS HISTORICAL COLLECTIONS
our names, at Kaskaskia, this twenty-sixth day of January, in the
year of our Lord one thousand eight hundred and ten, and of the
Independence of the United States the thirty-fourth.
Ninian Edwards,
Jesse B. Thomas,
A true copy, attest, Alexr. Stuart,
William Arundel, Clerk. Obadiah Jones.
An Act repealing part of a law, entitled, "A law for the prevention
of vice and immorality .' "
Be it enacted by the Governor and Judges of the Illinois Terri-
tory, and it is hereby enacted by the authority of the same: That so
much of the act, entitled, "An act for the prevention of vice and im-
morality," as requires the same to be executed by the judges of the
supreme or general court, except when the same may come before
them when sitting as a court, shall be, and the same is, hereby re-
pealed.
The foregoing is hereby declared to be a law of the Territory and
to take effect from the date thereof.
In testimony whereof, we, Ninian Edwards, Governor, and Alex-
ander Stuart, Obadiah Jones and Jesse B. Thomas, Judges, have here-
unto signed our names, at Kaskaskia, this twenty-sixth day of January,
in the year of our Lord one thousand eight hundred and ten, and of the
Independence of the United States the thirty-fourth.
Ninian Edwards,
Jesse B. Thomas,
A true copy, attest, Alexr. Stuart,
William Arundel, Clerk. Obadiah Jones.
[An Act] concerning fornication and adultey. Adopted from the
Georgia code.
Be it enacted by the Governor and Judges of the Illinois Terri-
tory, and it is hereby enacted by the authority of the same:
Whereas it is highly injurious in civilized society, that man or
woman shall live in adultery or fornication together,
Be it enacted: That from and after the passing of this act, that
any man or woman who shall live together in like manner, it shall be
the duty of any of the neighboring justices, if within their knowledge,
or upon information to them on oath, that such man and woman do
live in adultery or fornication, shall thereupon cause the said man and
laws of 1809-1811 . 23
woman to be brought before them, or either of them ; whose duty it
shall be to bind them over to appear at the next superior court; and
the attorney or solicitor general shall then and there prefer a bill of
indictment against both the man and the woman, and on conviction
thereof, they shall pay for the first offence a sum not exceeding forty
eight dollars ; and for the second offence a sum not exceeding one
hundred and twenty dollars ; and for the third offence a sum not ex-
ceeding three hundred and sixty dollars ; and stand commuted to jail,
until all, and every of the several sums imposed as aforesaid, shall be
paid, or continue therein not exceeding twelve months.
The* foregoing is hereby declared to be a law of this Territory and
to take effect from the date thereof.
In testimony whereof, we, Ninian Edwards, Governor, and Jesse
B. Thomas, Alexander Stuart and Obadiah Jones, Judges, have here-
unto signed our names, at Kaskaskia, this twenty-sixth day of January,
in the year of our Lord one thousand eight hundred and ten, and of the
Independence of the United States the thirty-fourth.
Ninian Edwards,
Jesse B. Thomas,
Alexr. Stuart,
Obadiah Jones.
An Act regulating the manner of taking depositions. Adopted
from the Georgia code.
Be it enacted by the Governor and Judges of the Illinois Terri-
tory, and it is hereby enacted by the authority of the same: That
where any witness resides out of the Territory, or out of any county
in which his testimony may be required in any cause, it shall be law-
ful for either party, on giving at least ten day's notice to the adverse
party, or his, her or their attorney, accompanied with a copy of the
interrogatories intended to be exhibited, to obtain a commission from
clerk of the court in which the same may be required, directed to cer-
tain commissioners to examine all and every such witness on such
interrogatories as the parties may exhibit ; and such examination shall
be read at the trial, on motion of either party.
The foregoing is hereby declared to be a law of this Territory, and
to take effect from the first day of May next.
In testimony whereof, we, Ninian Edwards, Governor, and Jesse
B. Thomas, Alexander Stuart and Obadiah Jones, Judges, have here-
24 ILLINOIS HISTORICAL COLLECTIONS
unto signed our names, at Kaskaskia, the twenty-sixth day of Febru-
ary, in the year of our Lord one thousand eight hundred and ten,
and of the Independence of the United States the thirty-fourth.
Ninian Edwards,
Jesse B. Thomas,
A true copy, attest, Alexr. Stuart,
William Arundel, Clerk. Obadiah Jones
An Act prescribing the duty of sheriffs in a certain case. Adopted
from the Georgia code.
Be it enacted by the Governor and Judges of the Illinois Terri-
tory, and it is hereby enacted by the authority of the same: That
where any sheriff shall levy an execution on property claimed by any
person not a party to such execution, such person shall make oath to
such property ; and it shall be the duty of the sheriff to postpone the
sale or future execution of the judgment, until the next term of the
court from whence the execution issued; and such court shall cause
the right of property to be decided on by a jury at the same term ;
unless special cause be shewn to induce the court to continue the
same for one term and no longer: Provided, the person claiming
such property, or his attorney, shall give bond to the sheriff with se-
curity in a sum equal to the amount of the execution, conditioned to
pay the plaintiff all damages, which the jury on the trial of the right
of property may assess against him, in case it should appear that
such claim was made for the purpose of delay. And every juror on
the trial of such claim shall be sworn, in addition to the oath usually
administered, to give such damages, not less than ten per cent, as may
seem reasonable and just, to the plaintiff against the claimant, in case
it shall be sufficiently shewn that such claim was intended for delay
only. And it shall be lawful for such jury to give a verdict in man-
ner aforesaid, by virtue whereof judgment may be entered up and exe-
cution issued against such claimant, and, Provided also, the burthen
of the proof shall lay on the plaintiff in execution.
The foregoing is hereby declared to be a law of this Territory and
to take effect from the first day of May next.
In testimony whereof, we, Ninian Edwards, Governor, and Jesse
B. Thomas, Alexander Stuart and Obadiah Jones, Judges, have here-
unto signed our names, at Kaskaskia, the twenty-sixth day of Febru-
ary, in the year of our Lord one thousand eight hundred and ten, and
laws of 1809-1811 25
of the Independence of the United States the thirty fourth.
Ninian Edwards,
Jesse B. Thomas,
A true copy, attest, Alexr. Stuart,
William Arundel, Clerk. Obadiah Jones.
An Act to repeal part of an act of the General Assembly of the In-
diana Territory passed the seventeenth day of September, in the
year one thousand eight hundred and seven, entitled, "An act re-
specting crimes and punishments."
• Be it enacted by the Governor and Judges of the Illinois Terri-
tory, and it is hereby enacted by the authority of the same: That
from, and after, the first day of May next, so much of the act of the
Indiana Legislature entitled, "An act respecting crimes and punish-
ments," as relates to burglary, robbery and perjury, shall be and the
same is hereby repealed.
Be it further enacted: That from, and after, the first day of May
next, so much of the before recited act, as prescribes any limitation of
the time, in which prosecutions for forgery, perjury or any felony,
shall be commenced, shall be and the same is hereby repealed.
In testimony whereof, we, Ninian Edwards, Governor, and Jesse
B. Thomas, Alexander Stuart and Obadiah Jones, Judges, have here-
unto signed our names, at Kaskaskia, this twenty-seventh day of
February, in the year of our Lord one thousand eight hundred and
ten, and of the Independence of the United States the thirty-fourth.
Ninian Edwards,
Jesse B. Thomas,
A true copy, attest, Alexr. Stuart,
William Arundel, Clerk. Obadiah Jones.
An Act repealing part of an act entitled, "An act concerning ap-
peals, from the judgment of justices of the peace to the county
courts."
Be it enacted by the Governor and Judges of the Illinois Terri-
tory, and it is hereby enacted by the authority of the same: That
so much of the said act as authorises the county court to decide on
appeals from the judgment of justices of the peace for any sum ex-
ceeding twenty dollars, exclusive of costs, is hereby repealed.
This act to take effect from the date thereof.
In testimony whereof, we, Ninian Edwards, Governor, and Jesse
26 ILLINOIS HISTORICAL COLLECTIONS
B. Thomas, Alexander Stuart and Obadiah Jones, Judges, have here-
unto signed our names, at Kaskaskia, this twenty-seventh day of
February, in the year of our Lord one thousand eight hundred and
ten, and of the Independence of the United States the thirty-fourth.
Ninian Edwards,
Jesse B. Thomas,
A true copy, attest, Alexr. Stuart,
William Arundel, Clerk Obadiah Jones.
A Law concerning grand jurors. Adopted from the Kentucky
Code.
Be it enacted by the Governor and Judges of the Illinois Terri-
tory, and it is hereby enacted by the authority of the same: [That]
the sheriff of each county, where a superior court of criminal juris-
diction is appointed to be holder*, shall before every meeting of such
court summon twenty-four of the most discreet housekeepers, resid-
ing within the limits of the jurisdiction of the said court, to appear
at the succeeding court, on the first day thereof ; and the said twenty-
four housekeepers, or any sixteen of them, shall be a grand jury, who
shall be sworn to enquire of and present all treasons, felonies, mur-
ders and other misdemeanors whatsoever, which shall have been com-
mitted or done within the limits of the jurisdiction of the said court.
And if a sufficient number of the said housekeepers shall not attend
on the first day of the court, the sheriff shall summon from the by-
standing housekeepers of the description aforesaid a sufficient num-
ber, together with those attending, to make a jury.
The foregoing is hereby declared to be a law of the Territory, and
to take effect from the date thereof.
In testimony whereof, we, Ninian Edwards, Governor, and Jesse
B. Thomas, Alexander Stuart and Obadiah Jones, Judges, have here-
unto signed our names, at Kaskaskia, this third day of March, in the
in the year of our Lord one thousand eight hundred and ten, and of the
Independence of the United States the thirty-fourth.
Ninian Edwards,
Jesse B. Thomas,
A true copy, attest, Alexr Stuart,
William Arundel, Clerk. Obadiah Jones.
laws of 1809-1811 27
An Act to prevent unlawful gaming. Adopted from the Virginia
Code.
Be it enacted by the Governor and Judges of the Illinois Terri-
tory, and it is hereby enacted by the authority of the same:
Sec. 1. That all promises, agreements, notes, bills, bonds, or
other contracts, judgments, mortgages, or other securities or convey-
ances whatsoever, made, given, granted, drawn or entered into or
executed by any person or persons whatsoever, after passing this act,
where the whole, or any part, of the consideration of such promise,
agreement, conveyances or securities shall be for money or other val-
able thing whatsoever, won, laid or betted at cards, dice, tables,
tennis, bowles or any other game or games whatsoever, or at any
horse race, cock fighting, or any other sport or pastime, or on any
wager whatsoever, or for the reimbursing or repaying any money,
knowingly lent or advanced at the time and place of such play, horse
racing, cock fighting, or other sport or pastime, to any person or per-
sons so gaming, betting, or waging, or that shall at such time and
place, so play, bet or wager, shall be utterly void and of none effect,
to all intents and purposes whatsoever ; any law, custom or usage to
the contrary thereof in anywise notwithstanding.
Sec. 2. Any conveyance, or lease of lands, tenements or heredita-
ments, sold, demised or mortgaged, and any sale, mortgage, or other
transfer of slaves or other personal estate, to any person, or for his
use to satisfy or secure money, or other thing by him won of, or lent
or advanced to the seller, lessor or mortgagor, or whereof money or
other thing so won, or lent or advanced, shall be part or all of the
consideration money, shall inure to the use of the heirs of such mort-
gagor, lessor, bargainor or vender, and shall vest the whole estate
and interest of such person in the lands, tenements or hereditaments
so leased, mortgaged, bargained or sold, and in the slaves, or other
personal estate, so sold, mortgaged or otherwise transferred, to all
intents and purposes, in the heirs of such lessor, bargainor, mort-
gagor or vender, as if such lessor, bargainor, mortgagor or vender had
died intestate.
Sec. 3. If any person, or persons, whatsoever at any time here-
after within the space of twenty-four hours by playing at any game or
games whatsoever, or by betting on the sides or hands of such as do
play at any game or games, shall lose to any one, or more person or
persons, so playing or betting, the sum or value of seven dollars or
28 ILLINOIS HISTORICAL COLLECTIONS
more in the whole, and shall pay or deliver the same or any part
thereof, the person, or persons, so losing, and paying or delivering the
same shall be at liberty within three months then next following to
sue for and recover the money or goods so lost, and paid or delivered,
or any part thereof, from the respective winner or winners thereof
with costs of suit, by action of debt founded on this act, to be prose-
cuted in any court of record in this Territory, where the sum or value
thereof shall be cognizable ; in which action it shall be sufficient for
the plaintiff to allege that the defendant is indebted to the plaintiff,
or received to the plaintiff's use, the money so lost, and paid or con-
verted the goods won of the plaintiffs to the defendants use, whereby
the plaintiff's accrued to him according to the form of this act,
without setting forth the special matter; and in case the party losing
such money, or other thing, as aforesaid, shall not within the time
aforesaid, really and bona fide, without covin or collusion, sue and
with effect prosecute for the money, or other thing so lost and paid
or delivered, it shall and may be lawful to and for any other person,
or persons, by any such action or suit as aforesaid, to sue for and
recover the same, and treble the value thereof, with costs of suit,
against such winner, or winners, as aforesaid, the one moiety thereof
to the use of the person, or persons, sueing for the same and the other
moiety to the use of the Territory.
Sec. 4. Provided, always, that upon discovery and repayment of
the money, or other thing, so to be discovered and repayed as afore-
said, the person and persons discovering and repaying the same, shall
be acquitted, indemnified and discharged from any further or other
forfeiture, punishment or penalty, which he or they may have in-
curred by the playing for, or winning, such money or other thing so
discovered and repaid.
Sec. 5. And to prevent gaming at ordinaries and other public
places, which must be often attended with quarrels, disputes and
controversies, the impoverishment of many people and their families,
and the ruin of health, and corruption of the manners of youth, who
upon such occasion frequently fall in company with lew'd, idle and
dissolute persons, who have no other way of maintaining themselves
but by gaming; Be it further enacted: that if any person or persons
shall at any time play in an ordinary, race field or any other public
place, at any game or games whatsoever, except billiards, bowles,
back gammon, chess or draughts, or shall bet on the sides or hands of
laws of 1809-1811 29
such as do game, every such person upon conviction thereof before
any justice of the peace in any county within this Territory by the
oath of one or more credible witness or witnesses, (which oath the
said justice is hereby empowered to administer) or by the view of
such justice, or the confession of the party accused, shall forfeit and
pay twenty dollars to be levied by distress and sale of the offender's
goods, by warrant under the hand of the justice, before whom such
conviction shall be, and for the use of the county wherein such offence
shall be committed ; and moreover, every person so convicted shall be
committed to the county jail, there to remain until he, she or they
give sufficient security for his, her or their good behaviour for twelve
months next after such conviction.
Sec. 6. If any, person by playing or betting at any game or
wager whatsoever, at any time within the space of twenty-four hours,
shall lose or win to or from another, a greater sum, or anything of
greater value, than twenty dollars, the loser and winner shall be
liable to pay one-half of the entire sum above the said sum of twenty
dollars, which he shall so win or lose ; and upon information thereof
made to the general court and due proof thereof had, such general
court shall levy upon the goods and chattels of the offenders the full
penalty incurred, which shall be applied to the use of the Territory.
Sec. 7. And whereas, divers lew'd and dissolute persons live at
great expenses, having no visible estate, profession or calling to sup-
port them, but by gaming only; Be it therefore enacted: that it shall
be lawful for any two justices of the peace in any county to cause to
come, or be brought, before them every person within their respective
limits, whom they shall have just cause to suspect to have no visible
estate, profession or calling to maintain himself by, but for the most
part supporting himself by gaming; and if such person shall not
make it appear to such justices that the principal part of his expenses
is not maintained by gaming, they shall require of him sufficient secu-
rities for his good behaviour for the space of twelve months ; and on
refusal thereof shall commit him to the common jail, there to remain
until he shall find such securities ; and if such person shall give such
securities, and afterwards within that time shall play or bet for any
money or other valuable thing whatsoever, such playing or betting
shall be a breach of the behaviour, and a forfeiture of the recogni-
zance given for the same.
Sec. 8. And be it further enacted: that if any person, or persons,
30 ILLINOIS HISTORICAL COLLECTIONS
whatsoever, do or shall at any time or times by any fraud, shift, cozen-
age, circumvention, deceit, unlawful device or evil practice whatso-
ever, in playing at, or with, cards, dice, or any other game or games,
or in or by bearing a share or part in the stakes, wagers or adventures,
or in or by betting on the sides or hands of such as do, or shall play,
win, obtain, or acquire to him or themselves, or to any other or others,
any sum or sums of money, or other valuable thing or things, what-
soever, every person so winning by such ill practice, and being there-
of convicted upon indictment or information, shall forfeit five times
the value of the money, or other things, so won, and suffer such cor-
poral punishment as in cases of wilful purjury ; and such penalty
shall be recoverable with costs by any person or persons, suing for the
same by action of debt in any court of record in this Territory having
cognizance thereof.
Sec. 9. Provided always, that any person agrieved by the judg-
ment of any justice of the peace upon any conviction for any of the
offences in this act cognizable before him, may appeal to the next
general court to be held for the county, where such person shall be
convicted; but shall give reasonable notice of such appeal to the
party, prosecuting him or her, and shall also enter into recognizance
with two sufficient securities before some justice of the county, where-
in the judgment was given on condition to try such appeal at the
next general court held for said county after entering such appeal
which shall be by the said court then heard and finally determined :
Provided, that no such judgment shall be set aside for want of form,
wherein it shall appear to the court that the facts were ssufficiently
proved at the trial.
Sec. 10. All and every keeper or keepers, exhibitor, or exhibitors,
of either of the gaming tables, commonly called A, B. C or E 0
tables or of a farro bank, or any other gaming table, or bank of the
same or the like kind, under any denomination whatever, shall be
deemed and treated as vagrants; and moreover, it shall and may be
lawful for any justice of the peace by warrant under his hand to
order any such gaming table to be seized and publicly burnt or
destroyed.
Sec. 11. No person in order to raise money for himself or another
shall publicly or privately put up a lottery of blanks and prizes to be
drawn or adventured for, or any prize or thing to be raffled or played
for, and whoever shall offend herein shall forfeit the whole sum of
laws of 1809-1811 31
money proposed to be raised by such lottery, raffling, or playing to
the use of the Territory.
Sec. 12. That all monies exhibited for the purpose of alluring
persons to bet against, at any game, and all moneys actually staked
or betted whatsoever, shall be liable to seizure by any magistrate or
magistrates, or by any other person or persons under a warrant from
a magistrate, wheresoever the same may be found ; and all such monies
so seized shall be accounted for and paid by the person, or persons,
making the seizure to the court of the county, wherein the seizure
shall be made, and applied by the court in aid of the levies, deducting
thereout fifty per centum upon all monies so seized to be paid to the
person, or persons, making the said seizure.
Sec. 13. Any person whatsoever, who shall suffer any of the games
played at the tables commonly called A. B. C. or E 0 or farro bank, or
any other gaming table or bank of the same or the like kind, under any
denomination whatever, to be played in his or her house or in a house,
of which he or her hath at the time the use or possession, shall for
every such offence forfeit and pay the sum of one hundred and fifty
dollars to be recovered in any court of record by any person who will
sue for the same.
Sec. 14. Whenever a judgment shall be obtained for any fine in-
curred by a breach of any law for preventing gaming, twenty dollars
shall be taxed in the bill of costs for a lawyer's fee.
Sec. 15. Any person, or persons, who shall oppose the seizure of
such monies as above described by any person, or persons, so author-
ised to make it, shall be liable to a penalty of fifteen hundred dollars,
to be recovered in any court of record for the use of the Territory, and
shall be moreover liable to the action of any party grieved by such op-
position ; and any person or persons, who shall take or carry away any
part of the said money after the said seizure, shall be declared, shall
be guilty of a misdemeanor.
Sec. 16. That every fine for forfeiture and penalty, imposed, de-
clared, inflicted or incurred, or which may be imposed, declared, in-
flicted or incurred, for the use of the Territory, under any act, or part
or parts of any act, heretofore made, for the prevention or discourage-
ment of any, kind of unlawful gaming or for the suppression thereof,
shall and may be recovered in the general court in this Territory upon
presentment or indictment by a grand jury, or upon information filed
by the attorney general in said court, or by action of debt, bill, plaint,
32 ILLINOIS HISTORICAL COLLECTIONS
or any other legal ways or means whatsoever; and in every such ease
no exception shall be admitted or sustained for any defect or want of
form, in any presentment, indictment, information, or other suit or
action whatsoever, which may be brought or instituted on behalf
of the Territory, or of any person, or persons, entitled to sue for the
same, either on his own behalf, or on behalf of such person or the
Territory ; but the court, before whom any such presentment, indict-
ment, information, suit or action shall be brought, shall proceed to
give judgment according to the very right of the case, any former law,
custom or usage to the contrary notwithstanding.
Sec. 17. And for the prevention of unnecessary delays in the
prosecution of offenders; Be it further enacted: That where any pre-
sentment or indictment authorised by this, or any other act, shall be
made by a grand jury, the court, wherein the same shall be made,
shall immediately order the proper process to bring the offender be-
fore them, returnable with all convenient expedition, which process
may be directed to the sheriff, or other officer, of any county within
this Territory, where the offender or offenders may be found, and such
sheriff, or other officer, to whom the same shall be directed, is hereby
empowered and required to execute the same, and make return there-
of to the court from which it issued ; and if the defendant, being duly
summoned, shall fail to appear, and plead to such presentment or in-
dictment immediately, the court shall forthwith proceed to give judg-
ment against him in the same manner as if he had appeared and con-
fessed the charge, or denying it, had been found guilty by the verdict
of a jury, and may award execution against him accordingly ; but if he
shall appear and plead not guilt}' to the presentment or indictment,
the court shall without delay proceed to the trial and render judgment
according to the very right of the case, as herein before directed ; and
whereupon any rule to shew cause why an information should not be
filed by the attorney for the Territory, the clefendent shall fail to ap-
pear and shew cause, pursuant to the notice duly given him, or left at
his usual place of abode, in every such case, if the information be
thereafter filed, the court may on any day after the day of shewing
cause, proceed to give judgment upon such information, in the same
manner as upon presentment or indictment by a grand jury. Pro-
vided, nevertheless, that if the offender, against whom any judgment
may be rendered, for want of his appearing to answer the presentment
or indictment or to shew cause against the filing of the information.
laws of 1809-1811 33
shall at any time during the same term, appear and surrender him-
self in custody, or give bail, being ruled so to do by the court, for his
appearance when required and plead not guilty to the presentment,
indictment or information, it shall be lawful for the court in every
such case to set aside the judgment against him, and thereupon the
court shall, without delay, proceed to the trial in the same manner, as
if he had appeared and pleaded there in the first instance ; and shall
render judgment thereupon according to the very right of the case
without regard to any exception that may be alleged against it.
Sec. 18. Whenever judgment shall be rendered against an}r
offender by virtue of this act, if he be not present, the court may award
a capias for the fine, and also to bring the body of the offender before
the court in order to be dealt with as the law directs ; which capias
may be directed to the sheriff, or other officer, of any county within
this Territory, where the offender may be found, and such sheriff or
other officer, to whom the same shall be directed, is hereby empowered
and required to execute the same and make return thereof to the court
from which it issued ; and upon every such capias, the sheriff or
other officer shall take good and sufficient bail in a sum not exceeding
five hundred dollars, nor less than two hundred dollars, for the ap-
pearance of the defendant on the first day of the next court ; and if he
shall fail to take such bail, he shall forfeit a sum not exceeding five
hundred dollars to the Territory ; and if the defendant being bailed
shall fail to appear accordingly, the bail bond shall be forfeited and
shall immediately be put in suit, and the clerk shall endorse upon the
writ that bail is required.
Sec. 19. And for the removing certain doubts, which have arisen,
in the construction of some of the acts, or parts of acts, made for the
preventing, discouraging and suppressing unlawful gaming ; Be it fur-
ther enacted and declared: That every house of entertainment, or
public resort, within this Territory,whether the same be a licensed
tavern or not, shall be deemed and taken to be a tavern, and the owner,
master, keeper or occupier of every such house, shall be deemed a
tavern keeper within the true intent and meaning of this act ; and the
owner, master, keeper or occupier of any tavern, licensed or unlicensed,
shall moreover be deemed to be the owner, master, keeper and occu-
pier of every house, out-house, booth, arbor, garden and other place
within the curtilage of the principal house, tavern, messuage or tene-
ment, or in any wise appurtenant thereto, or at any time held there-
34 ILLINOIS HISTORICAL COLLECTIONS
with, and every such house, out-house, booth, arbor, garden and other
place shall be considered as part of the tavern, unless the same shall
have been bone fide leased to some other person by deed, indented and
recorded previous to the time of any offence against any act for pre-
venting unlawful gaming, or for regulating ordinaries and restraint
of tippling houses, committed therein for a term not less than twelve
months from the day of the date of such lease and for a valuable con-
sideration bone fide paid, or secured to be paid, and unless the lessor
and his family shall bone fide dwell and board therein, and not else-
where; and if any such lease or pretended lease be made or recorded,
and the lessee shall not actually dwell and board himself and family
in the house or premises so demised, or pretended to be demised ; or if
the lessee shall directly or indirectly board or diet himself elsewhere ;
every such lease or demise shall be taken to be fraudulent within this
act, and both the lessor and lessee and his assigns shall be liable to
the same pains, penalties, fines, forfeitures and judgments, as if he or
they or either of them were tavern keepers, and occupiers of the
premises so leased or demised, and judgment against the one, shall
be no bar or impediment to a prosecution, judgment and recovery
against the other for any offence committed within the same, contrary
to the true intent and meaning of this act. or of any other act or acts,
or part of any act or acts, for preventing, discouraging or suppress-
ing unlawful gaming.
Sec. 20. And be it further enacted: That every keeper or ex-
hibitor of any of the tables commonly called A. B. C. or E. 0. tables,
or farro bank, or any other gaming table of the same or like kind
under any denomination whatsoever, or whether the same be played
with cards, or dice or in any other manner whatever, and every unli-
censed tavern keeper, who shall suffer any unlawful gaming upon any
part of the premises in his, or her, occupation, shall in addition to the
penalties, which he might or may be subject to under any former law
whatsoever, forfeit and pay one hundred dollars for every offence,
which he or they may be guilty of, against the true intent and mean-
ing of this act, or any former act for preventing, or discouraging or
suppressing unlawful gaming, and shall be compelled to give secu-
rity for his, or her, good behaviour in the sum of five hundred dollars
or more in the discretion of the court. And if he shall thereafter be
guilty of the same or like offence, it shall be deemed a forfeiture of
of his recognizance, and he shall be imprisoned without bail or main-
laws of 1809-1811 35
prize until the sum, in which he may be therein bound, shall be paid,
or until he shall be discharged under the several acts for the relief of
insolvent debtors.
Sec. 21. And be it further enacted: That the general court shall
have the power of revoking the licenses of tavern keepers in any case
of delinquency in permitting unlawful gaming in their houses or
taverns.
Sec. 22. In every case that may arise under any law for the pre-
venting, discouraging or suppressing of gaming, the court shall
interpret them as remedial, and not as penal statutes.
And be it further enacted: That the judges of the general court
are hereby empowered to execute this, and all other laws, for the pur-
pose of suppressing gaming.
The presiding judge shall constantly give this act in charge to the
grand jury at the times when such grand jury shall be sworn.
The foregoing is hereby declared to be a law at this Territory, and
to take effect from and after the seventh da}r of April next.
In testimony whereof, we, Ninian Edwards, Governor, and Jesse
B. Thomas and Alexander Stuart, Judges, have hereunto signed our
names, at Kaskaskia, this ninth day of March, in the year of our
Lord one thousand eight hundred and ten, and of the Independence
of the United States the thirty-fourth.
Ninian Edwards,
A true copy, attest, Jesse B. Thomas,
William Arundel, Clerk. Alexr. Stuart.
An Act repealing parts of certain acts.
Be it enacted by the Governor and Judges of the Illinois Terri-
tory, and it is hereby enacted by the authority of the same: That as
much of the sixth section of an act, entitled, "An act regulating the
admission and practice of attornies and counsellors at law," passed
by the General Assembly of the Indiana Territory on the seventeenth
day of September, in the year eighteen hundred and seven, as pro-
hibits the judges of any other Territory or State from practising law
in this Territory ;
And also the fourth section of an act, entitled, ' ' An act concerning
the introduction of negroes and mulattoes into the Territory, ' ' passed
by the said General Assembly on the seventeenth day of September,
in the year eighteen hundred and seven, be, and are, hereby repealed.
The foregoing is hereby declared to be a law of the Territory, and
36 ILLINOIS HISTORICAL COLLECTIONS
to take effect accordingly from the date thereof.
In testimony whereof, we, Ninian Edwards, Governor, and Jesse
B. Thomas and Alexander Stuart, Judges, have hereunto set our
hands, at Kaskaskia, the thirteenth day of March, in the year of our
Lord eighteen hundred and ten, and of the Independence
of the United States the thirty-fourth.
Ninian Edwards.
A true copy, attest, Jesse B. Thomas,
William Arundel, Clerk. Alexr. Stuart.
An Act to suppress duelling. Adopter] from the Virginia Code.
Whereas, experience has evinced that the existing remedy for the
suppression of the barbarous custom of duelling is inadequate to the
purpose, and the progress and consequences of the evil have become
so destructive as to require an effort on the part of the Legislature to
arrest a vice, the result of ignorance and barbarism, justified neither
by the precepts of morality nor by dictates of reason, for remedy
whereof :
Be it enacted by the Acting Governor and Judges of the Illinois
Territory, and it is hereby enacted by the authority of the same:
That any person who shall hereafter wilfull}" and maliciously, or by
previous agreement, fight a duel or single combat with any engine,
instrument or weapon, the probable consequence of which might be
death of either party, and in so doing shall kill his antagonist, or any
other person or persons, or inflict such as that the person injured shall
die thereof within three months thereafter, such offender, his aiders,
abettors and counsellors being thereof duly convicted, shall be guilty
of murder and suffer death bj7 being hanged by the neck, any law.
custom or usage of this Territory to the contrary notwithstanding.
And be it further enacted: That if any person whatsoever shall
challenge another to fight a duel with any weapon or in any man-
ner whatsoever, the probable issue of which may, or might, result in
the death of the challenger or challenged ; or if any person shall
accept a challenge, or fight a duel with any weapon, or in any way
whatsoever, the probable issue of which may, or might, terminate in
the death of the challenger or challenged, such person shall be inca-
pable of holding, or being elected to, any post of profit, trust or emol-
ument, civil or military, under the government of this Territory.
And be it [further] enacted: That from and after the passing of
this act, every person, who shall be appointed to any office or place.
laws of 1809-1811 37
civil or military, in this Territory, shall in addition to the oath now
prescribed by law, take the following oath : "I do solemnly swear, or
affirm, (as the case may be) that I have not been engaged in a dnel by
sending or accepting a challenge to fight a duel, or by fighting a dnel,
or in any other manner in violation of the act, entitled, "An act to
suppress duelling" (since the passage of that act), nor will I be so
concerned directly or indirectly in such duel during my continuance
in office, so help me God."
And be it further enacted: That it shall be the duty of the pre-
siding judge of the general court at each session of the court to give
in charge expressly to the jury this law, and also to charge the jury
to present all persons concerned in carrying, sending or accepting a
challenge.
And be it further enacted: That when any judge or magistrate
of this Territory has good cause to suspect any person, or persons, are
about to be engaged in a duel he may issue his warrant to bring the
parties before him ; and if he shall think proper, to take of them a
recognizance to keep the peace. He shall insert in the condition,
that the party, or parties , shall not during the time for which they
were bound, directly or indirectly be concerned in a duel, either with
the person suspected or any other person, within the time limited by
the recognizance.
And be further enacted: That if any person, or persons, shall,
for the purpose of eluding the operation of the provisions of this law,
leave the Territory, the person, or persons, so offending shall be
deemed as guilty and be subject to the like penalties as if the offence
had been committed within this Territory. If an}^ person shall leave
this Territory with the intention of giving or receiving a challenge to
fight a duel, or of aiding or abetting in giving or receiving such chal-
lenge, and a duel shall actually be fought, whereby the death of any
person shall happen, and the person so leaving the Territory shall
remain thereout, so as to prevent his apprehension for the purpose of a
trial ; or if any person shall fight a duel in this Territory, or aid or abet
therein, whereby any person shall be killed, and then flee into another
State or Territory to avoid his trial, in either case it shall be the
duty of the Executive, and they are hereby directed to adopt and
pursue all legal steps, to cause any such offender to be apprehended
and brought to trial in the county where the offence was committed,
when the duel shall have been fought within the Territory ; and, when
38 ILLINOIS HISTORICAL COLLECTIONS
it shall have been fought without the Territory, then in that county
where, in the opinion of the executive, the evidence against the
offender can be best obtained and produced upon his trial.
And be it further enacted: That it shall be the duty of the attor-
ney general of the Territory to give information to the executive,
whenever a case shall arise, which shall render the interposition of
the executive authority under this act necessary, and the deputies
of the attorney general at the first court, which shall be held, in which
they are to act as prosecuting attornies, after they have accepted
their appointments, shall take the following oath: "I do solemnly
swear, or affirm, (as the case may be) that I will to the best of my
judgment, execute the duty imposed on me by the act for suppressing
duelling, so help me God."
And be it further enacted: That all words, which from their usual
common construction and acceptation are considered as insults, and
lead to violence and breach of the peace, shall hereafter be actionable ;
and no plea, exception or demurrer shall be sustained in any court
within this Territory to preclude a jury from passing thereon, who
are hereby declared to be the sole judges of the damage sustained :
Provided, that nothing herein contained shall be construed to deprive
the several courts of this Territory from granting new trials as here-
tofore.
The foregoing is hereby declared to be a law of the Territory, and
to take effect accordingly from the date thereof.
In testimony whereof, we, Nathaniel Pope, Secretary, now Acting
Governor, and Jesse B. Thomas and Alexander Stuart, Judges, have
hereunto signed our names, at Kaskaskia, the seventh day of April,
in the year of our Lord one thousand eight hundred and ten, and of
the Independence of the United States the thirty-fourth.
Nat. Pope,
A true copy, attest, J. B. Thomas,
William Arundel, Clerk. Alexr. Stuart.
A Law concerning advertisements.
Whereas, it is provided by several of the statute laws now in force
in this territory, that advertisements should be inserted in some pub-
lic newspaper published in the Territory for the time and in the
manner therein required ; and whereas, there is at this time no news-
paper printed in this Territory :
Be it therefore enacted by the acting Governor and Judges of the
laws of 1809-1811 39
Illinois Territory and it is hereby enacted by the authority of the
same: That in all cases, where by law it is required that advertise-
ments should be inserted in some newspaper in the Territory, it shall
and may be lawful for all and every person and persons concerned, or
whose duty it shall be, to have the said advertisements inserted in
some of the newspapers published in the Louisiana Territory, for the
times and in the manner required by law, which shall have the same
force and effect, as if inserted in a newspaper published in this Terri-
tory.
This act shall take effect from the passage thereof, and shall con-
tinue in force until a newspaper is established and published in this
Territory and no longer.
In testimony whereof, we, Nathaniel Pope, Secretary, now Acting
Governor, and Jesse B. Thomas and Alexander Stuart, Judges have
hereunto signed our names, at Kaskaskia, the twenty-first day of May,
in the year of our Lord one thousand eight hundred and ten, and of
the Independence of the United States the thirty-fourth.
Nat. Pope,
A true copy, attest, Alexr. Stuart,
William Arundel, Clerk. J. B. Thomas.
An Act repealing so much of the law of the regulating county levies
as imposes a tax on neat cattle.
Be it enacted by the Governor and Judges of the Illinois Terri-
tory, and it is hereby enacted by the authority of the same: That so
much of any law or laws as provided for laying any tax on neat cattle
shall be and the same is hereby repealed.
The foregoing is hereby declared to be a law of this Territory, and
to take effect from the date thereof.
In witness whereof, we Ninian Edwards, Governor and Jesse B.
Thomas and Stanley Griswold, Judges, have hereunto signed our
names, at Kaskaskia, the tenth day of October, in the year of our
Lord, one thousand eight hundred and ten, and of the Independence
of the United States the thirty-fifth.
Ninian Edwards,
A true copy, attest, Jesse B. Thomas,
William Arundel, Clerk. Stanley Griswold.
An Act concerning courts of common pleas.
Be it enacted by the Governor and Judges of the Illinois Terri-
tory and it is hereby enacted by the authority of the same: That
40 ILLINOIS HISTORICAL COLLECTIONS
the fourth section of an act entitled, "An act concerning courts of
common pleas and county courts, ' ' passed by the Governor and Judges
of the Territory aforesaid on the sixteenth day of June eighteen hun-
dred and nine, repealing the law that recpaired the appointment of
three judges to the court of common pleas, shall be, and the same is,
hereby repealed.
Sec. 2. Be it further enacted by the authority aforesaid: That
the third section of the before recited act, whereby county courts to
consist of justices of the peace are established, except so far as re-
lates to the times of holding courts shall be, and the same is, hereby
repealed.
Sec. 3. Be it [further] enacted by the authority aforesaid: That
any law, or laws, which have heretofore been enacted by the
Governor and Judges aforesaid, taking from the court of common
pleas any jurisdiction, except over suits and prosecution of a civil and
criminal nature, shall be, and the same are, hereby repealed : Pro-
vided, nevertheless, that nothing herein contained shall be construed
to deprive the said courts of common pleas of jurisdiction over ap-
peals from the judgments of justices of the peace, as they are now regu-
lated by law, or to deprive them of any powers which the county
courts possessed.
Sec. 4. Be it further enacted by the authority aforesaid: That
so much of any law, as repeals the law allowing the judges of the
courts of common pleas two dollars per day for their services, shall
be, and the same is, hereby repealed.
In testimony whereof, we, Ninian Edwards, Governor, and Alex-
ander Stuart and Jesse B. Thomas, Judges, have hereunto signed our
names, at Kaskaskia, this twenty-second day of January, eighteen hun-
dred and eleven, and of the Independence of the United States the
thirty-fifth.
Ninian Edwards,
A true copy, attest, Alexr. Stuart,
William Arundel, Clerk. J. B. Thomas.
An Act concerning the powers of the Governor of the Territory of
Illinois. Adopted, form the constitution of the State of Penn-
sylvania.
Be it enacted by the Governor and Judges of the Illinois Terri-
tory, and it is hereby enacted by the authority of the same: That
the Governor of the Territory aforesaid shall have power to remit
laws of 1809-1811 41
fines and forfeitures and grant reprieves and pardons, except in eases
of impeachment.
The foregoing is declared to be a law of the Territory, and to have
effect as such.
In testimony whereof, we, Ninian Edwards, Governor, ond Alex-
ander Stuart and Jesse B. Thomas, Judges, have hereunto subscribed
our names, at Kaskaskia, in the Territory aforesaid on the twenty-
third day of January, eighteen hundred and eleven, and of the Inde-
pendence of the United States the thirty-fifth.
Ninian Edwards,
A true copy, attest, Alexr. Stuart,
William Arundel, Clerk. J. B. Thomas.
An Act concerning occupying claimants of land. Adopted from the
Kentucky code.
Be it enacted by the Governor and Judges of the Illinois Terri-
tory, and it is hereby enacted by the authority of the same: That
whereas, from the frequency of interfering claims to land and the un-
settled state of the country, it often happens that titles lay a long time
dormant and many persons deducing a fair title from the record, set-
tle themselves on land supposing it to be their own, from which they
may afterwards be evicted by a title paramount thereto ; and it is just
that the proprietor of the better title shall pay the occupying claim-
ant of the land for all valuable improvements made thereon, and also
that the occupying claimant shall satisfy the real owner of the same
for all damages that may have been done to the land by the commis-
sion of waste or otherwise during the occupancy. Therefore :
Sec. 1. Be it enacted by the authority aforesaid: That all and
every person, who may hereafter be evicted from any land, for which
he can shew a plain and connected title in law or equity deduced from
the record of some public office without actual notice of an adverse
title in like manner derived from record, shall be exempt and free
from all and every species of action, writ or prosecution for, or on ac-
count of, any rents or profits or damages, which shall have been clone,
accrued or incurred at any time prior to receipt of actual notice of
the adverse claim by which the eviction may be effected : Provided,
[that] such person obtained peacible possession of the land.
Sec. 2. And be it further enacted: That the court, who shall pro-
nounce and give the judgment of eviction either in law or equity, shall
at the time nominate seven fit persons, any five of whom shall have
42 ILLINOIS HISTORICAL COLLECTIONS
power ; and it shall be their duty to go on the premises and, after view-
ing the same, on oath or affirmation to assess the value of all such
lasting and valuable improvements, which shall have been made there-
on prior to the receipt of such notice as aforesaid; and also to assess
all damages the land may have sustained by the commission of any
kind of waste or by the reduction of soil by cultivation or otherwise
during the occupancy of the person evicted, and then subtract the
same from the estimated value of the said improvements, which as-
sessment signed and sealed by the persons making the same shall be
by them lodged with the clerk of the court, wherein they were nomi-
nated, before the next ensuing term or as soon thereafter as may be
convenient ; and at the next court after such assessment, it shall be
entered up as a judgment in favor of the person evicted and against
the successful claimant of the land, by the clerk. Upon which judg-
ment, execution shall immediately be issued by the clerk, if directed
by the person evicted ; unless the successful claimant shall give bond
and security, to be judged of by the court, to the person evicted, and
to be taken at the time of entering up such judgment, conditioned to
pay the some within twelve months from the date thereof with five
per cent interest thereon, provided the balance shall ultimately be in
favor of such occupying claimant, according to the directions and
provisions of this act ; which bond shall have the force of a judg-
ment, and at the expiration of twelve months aforesaid an execution
shall be issued upon the same by the clerk of the court, in which it
was taken, at the request of the party entitled thereto, on oath being
made that the same is yet due. Should the balance be in favor of
the successful claimant, judgment in like manner shall be entered up
in his favor against the other party for the amount of the same, upon
which an execution may be issued as aforesaid, unless bond and se-
curity shall be given to such claimant, which may be acted upon in
the manner before directed, and to declare what law shall be between
the adverse claimants under distinct titles of the kinds aforesaid after
notice.
Sec. 3. Be it further enacted by the authority aforesaid: That
the persons nominated by the court as aforesaid, when making an as-
sessment, shall carefully distinguish between such improvements as
were made on the land prior to notice, and those which were made
after notice ; and when making an assessment they shall also take in-
to consideration all such necessary and lasting improvements as shall
laws of 1809-1811 43
have been made on the lands after the receipt of such notice as afore-
said, and shall ascertain the amount of the value thereof; and they
shall also take into consideration and ascertain the amount of the
value of the rents and profits arising from the whole of the improve-
ments on the land from the time that notice of such adverse claim was
received by the occupying claimant ; and then after taking the amount
of the one from the other, the balance shall be added to, or subtracted
from, the amount of the value of the improvements, which shall have
been made before the receipt of the notice aforesaid, as the nature of
the case shall require.
Sec. 4. Be it further enacted: That the said commissioners shall
also estimate the value of the lands in dispute exclusive of any im-
provements that shall have been made thereon, and make report of the
amount of such valuation to the court ; and if the value of the im-
provements shall exceed such estimated value of the land in dispute,
in that case it shall, and may be, lawful for the proprietor of the better
title to transfer or convey, as the nature of the case may require, his
better title to the occupying claimant, and thereupon a judgment shall
be entered up in favor against the occupying claimant, for such esti-
mated value, upon which an execution may issue ; unless the occupy-
ing claimant shall give bond and security, to be approved of by the
court, to pay the amount of such judgment within one year after the
person transferring or conveying as aforesaid, with interest from the
date, which bond shall have the force of a judgment ; and if not paid
at the expiration of the year, an execution may issue on the manner
before directed by this act : Provided, however, that the proprietor
of the better title shall, in every such case at the time of entering up
judgment in his favor, give bond and security to be approved of by
the court to the occupying claimant to refund the amount of such
judgment in case the land so transferred or conveyed shall ever there-
after be taken from him by any other prior or better claim.
Sec. 5. Be it further enacted: That the persons, nominated'by
the court in virtue of this act, shall be called commissioners, and shall
respectively take an oath or affirmation to do equal right to the par-
ties in controversy, and shall also have power and authority to call
witnesses, and administer the necessary oaths, and to examine them
for the ascertainment of any fact material in the enquiry and assess-
ment by this act directed.
Sec. 6. And oe it further enacted: That the said commission-
44 ILLINOIS HISTORICAL COLLECTIONS
ers in making every estimate of value by virtue of this act shall state
separately the result of each, and the court shall have power to make
such allowance to the said commissioners in any case as shall seem
just, which allowance shall be taxed and collected as costs : Pro-
vided, that this act shall not be extended to affect or impair the obliga-
tions of contracts or to authorise the occupying claimant to be twice
paid for his improvements; and in all cases where the occupying
claimant is paid for his improvements by any other person than the
proprietor of the better title, such person shall have the same redress
as is allowed to the occupying claimant.
Sec. 7. And be it further enacted: That the court shall have the
same power to proceed by appointing commissioners to assess the
value of the improvements and the damages by the commission of
any kind [of] waste, by reduction of soil, by cultivation or otherwise
during the occupancy of the person evicted in case of arbitration or
by consent of the parties on motion without suit.
Sec. 8. And be it further enacted: That notice of any adverse
claim, or title to the land, within the meaning of this act shall have
been given by bringing a suit either in law or equity for the same by
the one or the other parties, and may hereafter be given, by bringing
a suit aforesaid or by delivering an attested copy of the entry, survey
or patent from which he derives his title or claim, or leaving any
such copy with the party, his wife or other free person above the age
of sixteen years on the plantation: Provided, however, that the notice
be given by the delivery of an attested copy as aforesaid shall be
void, unless suit is brought within one year thereafter: Provided
that in no case shall the proprietor of the better title be obliged to
pay to the occupying claimant for improvements, made after notice,
more than what is equal to the rents and profits aforesaid.
Sec. 9. And be it further enacted: That notice to any occupy-
ing claimant shall bind all those claiming from, by or through such
occupying claimant to the extent of such claim.
Sec. 10. And be it further enacted: That nothing in this act
shall be construed so as to prevent any court from issuing a precept
to stay waste, and ruling the party to give bond and security in such
manner as such court may think right.
This act shall be in force from the passage thereof.
The foregoing is hereby declared to be a law of this Territory.
In testimony whereof, we, Ninian Edwards, Governor, and Alex-
laws of 1809-1811 45
ander Stuart and Jesse B. Thomas, Judges, have hereunto signed our
names, at Kaskaskia, this twenty-fourth day of January, in the year
of our Lord eighteen hundred and eleven, and of the Independence
of the United States the thirty-fifth.
Ninian Edwards,
A true copy, attest, Alexr. Stuart,
"William Arundel, Clerk. J. B. Thomas.
A Law concerning the militia. Adopted from the militia law of
South Carolina.1
Be it enacted by the Governor and Judges of the Illinois Terri-
tory, and it is hereby enacted by the authority of the same: That all
officers shall reside within their respective commands, and on their
removal therefrom their commission shall be vacated.
That all brigadiers shall have the right to appoint their respective
aids de camp, who shall have the rank of captain, and that they
also have the right to appoint their respective brigade inspectors.
That the regimental staff shall be appointed by the colonels, re-
spectively, and be approved by the brigadiers, and that all officers to
be nominated and appointed as aforesaid shall be commissioned by
the Governor.
That all fines shall [be] inflicted on non-commissioned officers and
privates by the judgment of a majority of the commissioned officers
in the company in which the offenders are enrolled.
All other laws within the purview of this law are hereby repealed.
The foregoing is hereby declared to be a law of this Territory, and
to take effect from the date thereof.
In testimony whereof, we, Ninian Edwards, Governor, and Alex-
ander Stuart and Jesse B. Thomas, Judges, have hereunto signed our
names, at Kaskaskia, the seventeenth day of June, in the year
of our Lord one thousand eight hundred and eleven, and of the Inde-
pendence of the United States the thirty-fifth.
Ninian Edwards,
Alexr. Stuart,
J. B. Thomas.
A Law concerning the militia. Adopted from the Kentucky Code.
Be it enacted by the Governor and Judges of the Illinois Terri-
tory, and it is hereby enacted by the authority of the same: [That]
i The last four are reprinted from the Publications of the Illinois State
Hist. Lib., No. 2.
46 ILLINOIS HISTORICAL COLLECTIONS
the Governor shall provide for raising companies of grenadiers, light
infantry, cavalry, riflemen and artillery agreeable to the laws of the
United States at his discretion ; and when raised and officered shall
be subject to the laws and rules of the said United States and of this
Territory as other militia.
Be it further enacted by the authority aforesaid: That so much
of any law or laws as requires that the brigadiers shall choose their
brigade inspectors from the commissioned officers of the brigade, and
so much of any law as requires that the colonels of regiments shall
select their regimental staff from the commissioned officers of the
regiment, shall be and the same is hereby repealed.
The foregoing is hereby declared to be a law of this Territory, and
to take effect from the date thereof.
In testimony whereof, we, Ninian Edwards, Governor, and Alex-
ander Stuart and Jesse B. Thomas, Judges, have hereunto signed our
names, at Kaskaskia, the twenty-sixth day of June, in the year
of our Lord one thousand eight hundred and eleven, and of the Inde-
pendence of the United States the thirty-fifth.
Ninian Edwards,
Alexr. Stuart,
J. B. Thomas.
A Law altering the time of holding the general court at Cahokia,
in the county of Si. Clair.
Be it enacted by the Governor and Judges of the Illinois Terri-
tory, and it is hereby enacted, by the authority of the same: [That]
whereas, from the present appearances there is great reason to appre-
hend that the approaching fall will be uncommonly sickly, especially
at the town of Cahokia, in the county of St. Clair, and that in conse-
quence thereof, the judges of the general court, jurors, suitors and
witnesses will, in many instances, be unable to attend the court at the
next term, as now directed by law to be holden in said town :
Be it therefore enacted: That the general court shall hold its
next session in the town of Cahokia on the fourth Monday in the
month of October next, and that all process issued since April last
shall be considered as returnable to the said fourth Monday in Octo-
ber next.
This law shall take effect from and after the tenth day of August
next.
laws of 1809-1811 47
In testimony whereof, we, Ninian Edwards, Governor, and Alex-
ander Stuart and Jesse B. Thomas, Judges, have hereunto signed our
names at Kaskaskia, the thirty-first day of July, in the year
of our Lord one thousand eight hundred and eleven, and of the Inde-
pendence of the United States the thirty-sixth.
Ninian Edwards,
Alexr. Stuart,
J. B. Thomas.
The foregoing contains a true copy of all the laws enacted by the
Governor and Judges and filed in the office of the Secretary from
March first, eighteen hundred and eleven, to the thirty-first of Au-
gust following, inclusive.
Given under my hand, at Kaskaskia, the twenty-eighth day of
January, eighteen hundred and twelve.
An Act to repeal an act, entitled, "An act to encourage the killing
of wolves."
Be it enacted by the Governor and Judges of the Illinois Terri-
tory, and it is hereby enacted by the authority of the same: That an
act passed by the Legislature of the Indiana Territory, bearing the
date of the fourteenth day of September, in the year eighteen hun-
dred and seven, entitled, "An act to encourage the killing of wolves,"
be and the same is hereby repealed.
This act to take effect and be in force from and after the first day
of January next.
The foregoing is hereby declared to be a law of the Territory, and
to take effect accordingly.
In testimony whereof, we, Ninian Edwards, Governor, and Alex-
der Stuart, Jesse B. Thomas and Stanley Griswold, Judges, have here-
unto subscribed our names, at Kaskaskia, the ninth day of November,
in the year of our Lord, eighteen hundred and eleven, and of the
Independence of the United States the thirty-sixth.
Ninian Edwards.
Alexr. Stuart,
J. B. Thomas,
Stanley Griswold.
A true copy of all the laws passed from September first, eighteen
hundred and eleven to the twenty-ninth of February, eighteen hun-
dred twelve.
Nat. Pope, Secretary.
LAWS
PASSED
BY
THE LEGISLATIVE COUNCIL
AND
HOUSE OF REPRESENTATIVES
OF
ILLINOIS TERRITORY
AT
THEIR FIRST SESSION
HELD
AT KASKASKIA
IN 1812
FIRST PRINTED BY
MATTHEW DUNCAN
RUSSELLVILLE, KY.
1813
(From the second printing made from the original records,
by The Boston Book Company, 1920.)
A LIST OF LAWS
Page
An Act Declaring What Laws Are in Force in this Territory 51
For the Relief of the Sheriffs of Randolph and St. Clair Counties. . . 51
Concerning Proceedings in Civil Cases 52
Vesting the Judges of the General Court with Chancery Powers 52
Regulating the Courts of Common Pleas and Fixing the Time of Holding
Terms in the Several Counties 57
For Levying and Collecting a Tax on Land 59
For the Relief of Benjamin Stephenson 63
Regulating Grist Mills and Millers, and for Other Purposes 64
Concerning Frauds 65
Concerning Jurors 66
To Fix the Places of Holding Courts in the Several Counties 66
Authorising the Appointment of County Commissioners and for Other
Purposes 67
Regulating Elections 70
To Amend an Act Establishing and Regulating Ferries 71
Supplement to the Several Laws Concerning the Militia 73
Supplemental to an Act Regulating the Practice of the General Court
and Common Pleas, and for Other Purposes 73
For the Removal and Safe Keeping of the Ancient Records and Papers
in this Territory 74
Concerning the General Court 75
Concerning Fines and Forfeitures 77
To Repeal the Act Entitled "An Act to Prevent Unlawful Gaining ... 77
Fixing the Salaries of Certain Public Officers for One Year 78
Supplemental to an Act Concerning the General Courts 78
Supplemental to the Act to Fix the Places of Holding Courts in the
Several Counties 79
For Printing the Laws of This Territory 79
Making Appropriations for the Ensuing Year, and for Other Purposes 80
To Amend the Militia Laws of This Territory 81
Concerning Clerks Fees in the Court of Chancery and for Other Pur-
poses 82
LAWS OF ILLINOIS TERRITORY
Enacted in 1812.
An Act declaring what laws are in force in the Illinois Territory.
Sec. 1. Be it enacted by the Legislative Council and House of
Representatives and it is hereby enacted by the authority of the same.
That all the laws passed by the Legislature of the Indiana Territory
which were in force on the first day of March in the year one thousand
eight hundred and nine in that Territory, that are of a general nature
and not local to Indiana Territory and which are unrepealed by the
laws passed by the Governor and Judges of the Illinois Territory
are hereby declared to be in full force and effect in this Territory,
and shall so remain until altered or repealed by the Legislature of
this Territory.
Sec. 2. Be it further enacted. That all the laws passed by the
Governor and Judges of the Illinois Territory which remain unre-
pealed by them are hereby declared to be in full force and effect
within this Territory, and so to remain until altered or repealed
by the Legislature. This act to commence and be in force from and
after the passage thereof
Geo Fisher
Speaker of the House of Representatives.
William Biggs
President of the Legislative Council pro, tern
Approved Dec. 13. 1812
Ninian Edwards
An Act for the Belief of the Sheriffs of Randolph & St. Clair Counties
Whereas the Sheriffs of Randolph and StClair Counties were
unable to finish their business in the Counties of Gallatin, Johnstone
& Madison in consequence of their being now separated from the
Counties of Randolph and StClair and in consequence of the inauspi-
cious state of our affairs in relation to the Savages which called them
as well as a great number of the People to the defence of our Fron-
tiers— And whereas by the division of the Counties of Randolph and
StClair the said Sheriffs are not by Law authorized to make their
51
52 ILLINOIS HISTORICAL COLLECTIONS
Collections in those Counties : — Be it enacted by the Legislative Coun-
cil and House of Representatives of the Illinois Territory & it is here-
by enacted by the authority of the same — That the said Sheriffs of
Randolph & St Clair Counties shall have a right to finish their busi-
ness and shall be allowed the further time of Six months to make
their Collections & settle up their accounts in the same manner pre-
cisely as if no division of the Counties of Randolph and StClair had
taken place.
This act to be in force from the passage thereof.
Geo Fisher
Speaker of the House of Representatives
Pierre Menard
president of the Council
Approved Dec 17th 1812
Ninian Edwards
An Act concerning 'proceedings in Civil Cases.
Sec. 1. Be it -enacted by the Legislative Council and House of
Representatives and it is hereby enacted by the authority of the
same. — That in all cases which may hereafter be depending before
any Court of Law in this Territory if the plaintiff recovers a verdict
for any Sum however small. He shall be entitled to full Costs any
Law to the contray notwithstanding.
Geo Fisher
Speaker of the House of Representatives
Pierre Menard
president of the Council
Approved Dec 19. 1812
Ninian Edwards
An Act vesting the Judges of the General Court with Chancery
Powers.
Sec. 1. Be it enacted by the Legislative Council & House of Rep-
resentatives of the Illinois Territory & it is hereby enacted by the
authority of the same : That the Judges of the General Court of the
said Territory shall be and they are hereby authorized to exercise all
the Powers & authority usually vested in & exercised by a Court of
Chancery which said Court shall be called & styled The Court of
Chancery
laws of 1812 53
Sec. 2. The said Judges of any two of them shall annually
hold two stated terms of the said Court of Chancery at the seat of
Government of the Territory commencing the Day (if it should not
be on a Sunday) after the General Court sitting as a Court of Law
shall have gone through their business.
Sec. 3. In all Suits in the said Court of Chancery the Rules &
Methods which regulate the practice of the High Court of Chancery in
England shall as far as the said Court may deem the same applicable,
be observ'd except as hereinafter mentioned.
Sec. 4. If the Court shall not sit or be opened at any of the said
Terms whereon the same ought to be held the Writs & process then
returnable & the Bills Suits pleadings and proceedings before the said
Court shall be continued of course untill the next Term & from Term
to Term untill the Court shall sit.
Sec. 5. The Court in Term or any of the said Judges in vacation
shall be authorised to grant Writs of ne exeat. Injunction, Certiorari
or other process usually granted bty a Court of Equity.
Sec. 6. If the Complainant resides out of the Territory he shall
before the issuing of Process to appear cause a bond to be executed
by at least one sufficient Person being a Freeholder & resident in the
Territory to the Defendant in the penal Sum of Two Hundred Dol-
lars conditioned to prosecute the suit with effect & to pay Costs if the
Defendant should be intitled thereunto & to have the same filed with
the Clerk in default whereof the said Complanants said Bill shall
be dismiss 'd with Costs.
Sec. 7. Any Complainant residing within the Territory shall
at the discretion of the Court give security in the manner & form as
is required in the case of non-residents.
Sec. 8. Every Subpoena, process of sequestration, Writ of Exe-
cution or other writ or process shall be issued by the Clerk at the
instance of the party and signed and sealed by him.
Sec. 9. Rules to plead answer reply rejoin or other proceedings
when necessary shall be given in open Court and entered in a Book
kept for that purpose for the information of all parties attorneys or
counsellors therein concern 'd.
Sec. 10. No subpoena in Chancery shall issue untill the Bill is
filed with the Clerk whose duty it shall be to copy the same and
deliver the copy to the person applying for the subpoena which copy
shall be delivered to the Defendant if in the Territory by the officer or
J
54 ILLINOIS HISTORICAL COLLECTIONS
person serving the subpoena which service & delivery shall be en-
dors 'd on the back thereof & if there be more than one Defendant
the copy shall be delivered to the one first named in the subpoena if he
be resident within this Territory, if not the next one named in the
subpoena that is a resident.
Sec. 11. When any Defendant if but one, or Defendants, if more
than one, reside out of the Territory or cannot be found to be serv'd
with process of subpoena or abscond to avoid being- serv'd therewith
Public notice signed by the Clerk shall be given to the Defendant or
Defendants in any Newspaper printed in the Territory as the Court
shall direct & if there should be no newspaper printed therein then
in such Newspaper as the court shall direct either in the State of
Kentucky or in the Missouri or Indiana Territories that unless he or
they appear & file his or their answer by a day given him or them
by the Court the Bill shall be taken pro confesso & where a bill is
amended a Copy of the amendatory bill shall in like manner be deliv-
ered to the Defendant or Defendants.
Sec. 12. In suits in Chancery the Complainant may take depo-
sitions in one month after filing his bill before any Judge or Justice
of the peace & the Defendant may do the like as soon as he has filed
his answer which may be done without a Dedimus unless the Wit-
nesses live without the Territorj^ provided that reasonable notice be
given of the time & place of taking such depositions which reason-
able notice shall in all cases be ten days & over & above these ten days
one day for every twenty miles traveled from the place of holding
the Court to where the Witness or Witnesses are to be sworn &
examined.
Sec. 13. If the Defendant does not file his answer in the time
prescribed by the rules of the Court having also been serv'd with
process of Subpoena with a copy of the bill or notice given as re-
quired by this act the Complainant shall proceed on to hearing as
if the answer had been filed & the cause at issue : Provided however
that the Court for good cause shewn may allow the answer to be filed
& grant a further day for such hearing.
Sec. 14. Any Defendant maj' swear to his answer before any
Judge of this or the General Court or any Justice of the Peace and if
the Defendant resides out of the Territory he may swear to his an-
swer before any Justice of the peace of a County, City or Town
corporate the common seal of any Court of Record of such County,
laws of 1812 55
City or Town corporate being thereunto annexed.
Sec. 15. The complainant having obtain 'd decree & the Defend-
ant not having complied therewith by the time appointed it shall be
Lawful for the said Court to issue a writ of fieri facias against the
goods & chattels, Lands, Tenements & Hereditaments of the Defend-
ant upon which sufficient property shall be taken & sold to satisfy the
said demand with costs or to issue a capias adsatisfaci endum against
the Defendant upon writs of fieri facias & capias ad satisfaciendum
there shall be the same proceedings as at Law or to cause by in-
junction the possession of effects and Estate demanded by the bill
& whereof the possession or sale is decreed to be delivered to the com-
plainant or otherwise according to such decree & as the nature of
the case may require.
Sec. 16. When a decree of a Court of Chancery shall be made
for a conveyance, release or acquittance and the party against whom
the decree shall pass shall not comply therewith by the time appointed
then such decree shall be taken & considered in all Courts of Law &
Equity to have the same operation & effect & be as available as if the
conveyance release or acquittance had been executed conformably to
such decree.
Sec. 17. A decree of the Court of Chancery shall from the time
of its being signed have the force, operation & effect of a Judgement
at Law in the General Court in this Territory from the time of the
actual entry of such Judgement.
Sec. 18. A writ of fiere facias shall bind the goods of the per-
son against whom it is issued from the time it was delivered to the
Sheriff or officer to be executed as at Law.
Sec. 19. That a Clerk to the aforesaid Court of Chancery shall
be appointed by the acting Governor of the Territory and shall enter
into Bond with security to be approved of by said Governor in the
Penalty of One Thousand Dollars condition 'd for the faithful per-
formance of such duties as are hereby required or hereafter may be
required of him which Bond shall be filed in the office of the Secre-
tary of the Territory.
Sec. 20. No injunction shall be granted to staying proceedings
at Law unless the party praying the injunction have at least by one
witness proved that the opposite party (if living in the Territory
if not his agent or attorney of record had at least ten & not more
than fifteen Days notice of the time & place of applying for such
56 ILLINOIS HISTORICAL COLLECTIONS
injunction from the time of which notice given all proceedings at
Law shall be stayed untill the Court or Judges decision shall be
made whether an injunction shall or shall not be granted but if the
Complainant shall not make application for such injunction on the
Day specif yed in such notice then the plaintiff at Law may proceed
as if none had been given nor shall any injunction be granted to stay
any Judgment at Law for a greater Sum than that the Complainant
shall shew himself equitably not bound to pay & so much as shall be
sufficient to cover the Costs and every injunction when granted shall
operate as a release to all errors in the proceedings at Law that are
prayed to be enjoin 'd. Nor shall any injunction be granted unless
the Complainant shall have previously executed a Bond to the De-
fendant with sufficient surety to be approv'd of by the Court or
Judges granting the injunction in double the sum prayed to be in-
join'd condition 'd for the payment of all monies and Costs due or
to be due to the plaintiff in the action at Law and also all such Costs
and damages as shall be awarded against him or her in case the in-
junction shall be dissolved. If the injunction shall be dissofv'd in
the whole or in part of the Complainant shall pay Six pCent exclu-
sive of Legal interest beside Costs and the Clerk shall issue an Exe-
cution for the same when he issues an Execution upon such Judge-
ment— on the dissolution of an injunction judgement shall be given
by the Court against sureties as well as against the Complainant in the
injunction Bond. Provided however that no injunction to stay pro-
ceedings at Law shall be granted after thirty Days next succeeding
the end of the Term at which the Judgement sought to be injoin'd
was rendered.
Sec. 21. Whenever affidavits aer taken either to support or
dissolve an injunction the party taking the same shall give the ad-
verse party reasonable notice of the time & place of taking the same &
the Clerk shall issue to either of the parties Subpoenas to procure the
attendance of witnesses at the time & place appointed & such affidavits
taken as aforesaid shall be read on the final hearing of the Cause
in which they may be taken under the same restrictions as Depositions
taken according to Law —
Sec. 22. No notice shall be necessary in any Ca.se where appli-
cation is made for an injunction in Term time nor in vacations where
the Title or Bonds for Land shall come in question.
Sec. 23. Writs of Ne Exeat shall not be granted but upon Bill
laws of 1812 57
filed and affidavit to the allegations which being produced to the Court
in Term time or the Judge in vacation he or they may grant or re-
fuse such writ as to him or them shall seem meet & if granted he or
they shall endorse thereon in what penalty Bond & securety be re-
quired of the Defandant.
Sec. 24. No writ of Ne Exeat shall issue untill the Complainant
shall give Bond and Security in the Clerks Office to be approved by
the Court or Judge and in such penalty as he or they shall adjudge
necessary to be endors'd on the Bill and in Case any person stayed by
such writ of Ne exeat shall think himself or themselves aggrieved
he or they may bring Suit on such Bond and if on the Trial it shall
appear that the Writ of Ne Exeat was paryed without a just cause
the Person injured shall recover Damages.
Sec. 25. If the Defendant or Defendants to the Bill shall go out
of the Territory but shall return, before a personal appearance shall
be necessary to perform any order or Decree of the Court such his
or her temporary departure shall not be considered as a breach of the
Condition of the Bond.
Sec. 26. "Whenever the Defendant to the Bill shall give security
that he will not depart the Territory the security shall have leave at
any time before the Bond shall be forfeited to secure his principal
in the same manner that special Bail maj^ surrender their principal
and obtain the same discharge.
Sec. 27. If any Bill shall be brought touching any matter or
thing real or personal which shall not be of the value of Fifty Dollars
the same shall be dismiss 'd with Costs. And be it further enacted
that all Laws and parts of Laws coming within the purview of this
Act be and the same are hereby repeal'd. This Act shall be in force
from and after the first day of January next
Geo Fisher
Speaker of the House of Representatives
Pierre Menard
Approved Dec 19, 1812 president of the Councill
Ninian Edwards.
An Act regulating the Courts of Common Pleas and fixing the times
of holding Terms in the several Counties, etc.
Sec. 1. Be it enacted by the Legislative Council and House of
Representatives and it is hereby enacted by the authority of the
58 ILLINOIS HISTORICAL COLLECTIONS
same — That the Courts of Common Pleas in the several counties in
this Territory ; shall hereafter possess and exercise the same Juris-
diction and Powers in the respective Counties, that were possess 'd
and exercis'd by the said Courts by virtue of the Laws of the Indiana
Territory on the first day of March in the year One Thousand Eight
hundred and nine any Law or parts of Law to the contrary notwith-
standing.
Sec. 2. Be it further enacted that the Judges of the Courts of
Common Pleas shall each receive for every Day they attend at their
several Terms the Sum of Two Dollars to be paid out of the respective
County Levies.
Sec. 3. Be it further enacted that the Terms at which suits of
a Civil and Criminal nature shall be transacted as directed by Law
shall commence at the following Periods in the several Counties
towit : In the County of Madison onthe first Mondays of Febru-
ary, June and October. In the County of StClair on the second
Mondays of February, June and October. Inthe County of Randolph
on the fourth Mondays of February, June and October In the
County of Johnson on the second Mondays of March, July and No-
vember In the County of Gallatin on the fourth Mondays of March,
July and November yearly & every year.
Sec. 4. Be it further enacted that the three other Terms of the
said Courts shall be holden in the several Counties at the following
Periods towit : In the County of Madison on the first Mondays of
April, August and December — In the County of StClair on the sec-
ond Mondays of April, August and December. In the Count}' of
Randolph on the fourth Mondays of April, August and December
In the County of Johnstone on the second Mondays of May, Sep-
tember and January. In the County of Gallatin on the fourth Mon-
days of May, September and January yearly and every year.
Sec. 5. Be it further enacted that all process and proceedings
before the Courts of Common Pleas in the Counties of Randolph and
StClair shall be and the same are hereby continued & made cognizable
at the first Terms to be held therein under this Act in the same
manner as if this act had not pass'd.
Sec. 6. Be it further enacted that all appeals from the Judge-
ment of Justices of the Peace shall hereafter be return 'd to and tried
in the Courts of Common Pleas in the respective Counties under the
same rules and regulations as are now provided by Law. All acts
laws of 1812 59
and parts of Acts repugnant to this act shall be & the same are hereby
repealed. This act to commence and be in force from and after the
passage thereof.
Geo Fisher
Speaker of the House of Representatives
Pierre Menard
Approved Dec 19. 1812 president of the Council
Ninian Edwards
An Act for Levying and collecting a Tax on Land.
Sec. 1. Be it enacted by the Legislative Council and House of
Representatives and it is hereby enacted by the authority of the same.
That for the purpose of raising a Tax upon Land it shall be
divided into three classes.
The Mississippi and Ohio Bottoms shall be considered first rate.
All other Located Lands second rate and all claims to Land that
have been confirm 'd by proper authority shall untill they are Located
be consider 'd as third rate but as soon as they may be Located they
shall be consider 'd as belonging to the second class unless they be
Located in the Bottoms aforesaid but if Located in said Bottoms they
shall be consider 'd first rate.
Sec. 2. Be it further enacted by the authority aforesaid that each
and every person claiming Land by Deed, Entry, Bond for convey-
ance, & confirmed by the proper Authority whether residents or non-
residents shall enter the same for Taxation in the manner hereinafter
provided and within the time specified and if any Person or Perosns
shall fail to do so he, she or they shall forfeit Five Dollars for every
hundred acres of Land one half of which shall go to any Person
suing for the same and the other half for the use of the Territory.
Sec. 3. Be it further enacted by the authority aforesaid — That
the Territory shall have a lien upon all and every Tract of Land or
claim thereto for the Taxes hereafter imposed which lien shall not be
affected by any transfer whatever and all sales and other proceedings
hereinafter directed shall be deem'd good and valid in whose name
soever the said Land or claim thereto shall be entered or sold unless
he she or they contesting the validity thereof shall shew that the
Tax had actually been paid thereon which in all cases shall be The
first thing required of any one attempting to set aside any sale
under this act.
60 ILLINOIS HISTORICAL COLLECTIONS
Sec. 4. Be it enacted by the authority aforesaid that the fol-
lowing are hereby declar'd to be the Taxes requir'd to be collected
under this act — For first rate Land at the rate of one hundred Cents
Per hundred Acres ; For second rate Land at the rate of Seventy
five Cents Per hundred Acres ; For third rate Land at the rate of
Thirty seven and one half Cents Per hundred Acres.
Sec. 5. Be it further enacted by the authority aforesaid that
those Persons hereinafter requir'd to List their Lands for Taxation
shall specify as far as he, she or they can, each separate Trad, the
Class it belongs to, the Name of the Original Claimant, to whom
confirm 'd, to whom patented ; in what County and on what Water
Course it lies.
Sec. 6. Be it further enacted by the authority aforesaid that all
Non-residents shall enter their Lands with the Auditor of Public-
Accounts at his office in the Town of Kaskaskia on or before the first
Day of August next and if any such non-resident or non-residents
shall fail to pay the Taxes impos'd by this Law on or before the first
of October the Auditor shall transmit a List of such Delinquents and
the Lists of the Lands entered by them or their agents to the
Sheriff of Randolph County as soon as may be whereupon the said
Sheriff shall advertise the said Lands as listed for sale in some News-
paper most convenient to Kaskaskia as many as five successive weeks
giving notice of the day of sale, shall accordingly sell the whole or
so much of each Tract as will pay the Tax his Fee and the cost of
advertising which sale shall be at the Door of the House in which
Court may be usually held for the County of Randolph.
Sec. 7. Be it further enacted by the authority aforesaid, that it
shall be the duty of the Commissioner of each County in this Territory
to advertise in their respective Counties at the usual places of holding
Courts for the same and in each Township if there be any that he
will on a certain Day not less than Twenty Days thereafter attend
at some place in each Township if any there be otherwise at some
place that he may suppose convenient for the purpose of receiving
from the Inhabitants of his County their Lists of Lands according to
this Law and such persons are hereby requir'd to attend at such
places as said Commissioner may appoint as aforesaid — Provided
however that any person who does not attend shall have a right at
any time within Ten Days thereafter to tender his her or their List
according to Law to said Commissioner. In failure of any person
LAWS OF 1812 61
to List his her or their Land the Commissioner shall proceed to List
such person or persons Lands agreeably to the best information he
can get. Any person or persons giving in a List of their Lands as
aforesaid shall swear that said List contains a true and correct ac-
count of his, her or their Lands to the best of his her or their knowl-
edge. And if any Fraud shall be practic'd in said List or Lists the
person or persons guilty thereof shall forfeit to the Territory the
whole interest in the Land about which such fraud may be practis'd.
Sec. 8. Be it further enacted that said Commissioner shall finish
taking in the Lists aforesaid by the first Day of May in each and
every year hereafter and within twenty Days thereafter shall return
the same to the Clerk of the Court of Common Pleas for his County
who shall make out two fair Copies of the same one of which he shall
deliver to the Sheriff and the other he shall transmit to the Auditor
of Public Accounts within Twenty Days retaining the Original in
his office which original or the Copies thereof shall be admitted as
Testimony in any Court within this Territory.
Sec. 9. Be it further enacted that the Auditor shall charge each
Sheriff with the Taxes due according to their respective Lists.
Sec. 10. Be it further enacted that each Sheriff shall have power
and it shall be his duty to demand of every Inhabitant of his County
the amount of the Tax due by him, her or them for their Lands either
personally or by leaving a notice at their usual or last place of resi-
dence on or before the first day of June next yearly and every year
and on failure of any person to pay the same the Sheriff shall pro-
ceed to sell the Land or so much thereof as will pay the Tax and the
Costs due on it at the Door of the House in which Court may be usu-
ally held in his County having given at least Forty days notice thereof
by advertising at the door of the house aforesaid and three times
successively in some Newspaper most convenient to the place of sale.
Provided however that it shall be the duty of the Sheriff to receive
any arrearages of Taxes with the Costs that have accrued thereon for
advertising if the person tendering the same will pay him also Five
Cents on each Tract for his own use : And Provided also That if the
owner of any Tract or Tracts of Land for which the said Tax shall
be in arrears or any person for him shall on the day on which the
said Land shall be advertis'd for sale as above mentioned tender and
deliver to the Sheriff to be sold on that Day by him at the place of sale
as above mention 'd Goods and Chattels sufficient to make the said
62 ILLINOIS HISTORICAL COLLECTIONS
Tax and Costs so in arrear then the Sheriff shall not sell the said
Land or any part thereof but shall make and Levy the said Tax in
arrear by a public Sale of such Goods and Chattels rendering the
overplus if any to the owner of such Land or such Person for him.
Sec. 11. Be it further enacted by the authority aforesaid that if
any Tract of Land either of Residents or Non-Residents will not
when expos 'd to sale as aforesaid sell for the Taxes and Costs due
thereon it shall be struck off to the Territory which shall be consid-
ered as the purchaser thereof.
Sec. 12. Be it further enacted that in all sales of Non-residents
Lands the Sheriff who sells the same shall return a List of the Sales
specefying the quantity of each Tract that has been sold, the price
it sold for and the purchasers name to whom it was sold. In all sales
of the Lands of Residents the Sheriffs of each county respectively
shall return a similar List to the Clerk of the Court of Common
Pleas in his County both of which Lists shall be carefully preserv'd
and it shall moreever be the duty of said Sheriff to give to each pur-
chaser a certificate of the sale to him which shall vest the Title in him
completely and perfectly unless the Land should be redeem 'd in the
manner hereinafter pointed out.
Sec. 13. Be it further enacted that if any Sheriff in Selling
said Land should happen to charge too much Tax and Costs thereon
it shall not vitiate the sale thereof but the purchaser shall relinquish
so much of the Lands as will bear a proportion to the Sum over-
charg'd rating the value of the whole Land purchased by the price
it sold for.
Sec. 14. Be it further enacted that the Sheriffs of each County
respectively shall on or before the first day of November in each
Year pay to the Public Treasurer the whole amount of the Taxes
collected by them on Land which shall go to defray all Territorial
Expenses and the said Sheriffs shall settle with the auditor for all De-
linquencies & for all Land which could not sell who is authorised to
give them credit for the Same.
Sec. 15. Be it further enacted that if any Sheriff shall charge
more than his Legal Pees for the collection of the Tax aforesaid He
shall be subject to a fine not exceeding Three hundred Dollars — That
for taking in a List of Lands as aforesaid each Commissioner shall
be allow 'd by the Court of Common Pleas Two Dollars Per Day for
the Time necessarily spent therein and the Sheriff for Collecting
laws of 1812 63
the Taxes aforesaid Seven and an half Per Cent which shall be al-
lowed by the Auditor.
Sec. 16. Be it further enacted that all residents and non resi-
dents shall be allowed Two Years to redeem their Land. The resi-
dents by paying- the price it sold for with one hundred Per Cent
thereon to the Clerk of the Court of Common Pleas in the respective
Counties, the non-residents by paying at the same rate to the Audi-
tor which money the said Clerk and Auditor shall pay to the respec-
tive Purchasers, their Agents or Attorneys, whenever thereto re-
quired, and of the receipts of which they shall keep a record in their
respective offices which shall at all times be evidence sufficient to
vacate the sales as aforesaid.
Sec. 17. Be it further enacted that each Clerk shall be allow 'd
for the duties enjoin 'd on him by this Act the Sum of Ten Dollars.
Sec. 18. Be it further enacted that the Auditor shall cause to
be publish 'd in some Newspaper for three weeks successively such
parts of this Act as relates to Listing Land and the Tax impos'd
thereon and the time such Tax will become due.
Sec. 19. Be it further enacted that each Sheriff shall enter into
Bond to the Governor of the Territory with securities to be approv'd
by the Court of Common Pleas in their respective Counties in the Sum
of Two Thousand dollars condition 'cl for the faithful discharge of
the duties enjoin 'd on him by this Act
Sec. 20. Be it further enacted that an Auditor and Treasurer
shall be appointed whose duty shall be the same as those requir'd by
the Laws of Indiana Territory as they stood on the first Day of March
1809 and who shall keep their respective offices at the Seat of Govern-
ment.
Geo Fisher
Speaker of the House of Representatives
Pierre Menard
Approved Dec 23. 1812 president of the Council
Ninian Edwards
An Act for the relief of Benjamin Stephenson.
Whereas it has been represented to the General Assembly that
Benjamin Stephenson Esquire has perform 'd the arduous and im-
portant duties of Brigade Inspector of the Militia of the Territory
from the Month of June Eighteen hundred and Eleven up to the
64 ILLINOIS HISTORICAL COLLECTIONS
present time and thereby necessarily incurr 'd considerable expence :
And whereas it is thought unjust that the said expences should be-
come a private burden but that the same being- necessary should be
remunerated to the said Stephenson, Therefore :
Sec. 1. Be it enacted by the Legislative Council and House of
Representatives of the Illinois Territory and it is hereby enacted by
the authority of the same — That it shall and may be Lawful for the
Territorial Treasurer to pay to the said Benjamin Stephenson out of
any Money in the Territorial Treasury not otherwise appropriated
Forty Two Dollars as a full compensation for his services and a re-
muneration for expences incurr 'd by him as Brigade Inspector up to
the first day of January next. This Act shall take effect and be in
force from and after the passage thereof.
Geo Fisher
Speaker of the House of Representatives
Pierre Menard
Appoved Dec 23. 1812 president of the Council
Ninian Edwards
An Act to amend an act entitled an act Regulating Grist Mills and
Millers and for other Purposes.
Sec. 1. Be it Enacted by the Legislative Council and House of
Representatives of the Illinois Territory and it is hereb}^ enacted by
the Authority of the same.
That any Person or Persons who shall hereafter build any Mill
or Dam or any River, Creek, run or Spring within this Territory
(without first complying with the ninth Section of the Act to which
this is an amendment) and thereby work an injury to any other
Person or Persons shall be subject to the fine of Two hundred Dol-
lars for every such offence to be recovered before any Court of Rec-
ord in this Territory by any Person who shall or may be injured and
will sue for the same, and all Mills so built without complying with
the Act aforesaid shall be deemed nuisances and dealt with as such.
This Act to commence and be in force from and after the Passage
thereof.
Geo Fisher
Speaker of the House of Representatives
Pierre Menard
Approved Dec 25. 1812 president of the Concil
Ninian Edwards
laws of 1812 . G5
An Act concerning Frauds.
Sec. 1. Be it enacted by the Legislative Council and House of
Representatives and it is hereby enacted by the authority aforesaid.
That an Action on the Case may be brought for any Fraud whatso-
ever that the Plaintiff in any such suit at the time of filing his or her
declaration may file written interrogatories which it shall be the Duty
of the Defendant to answer in writing which shall be filed at the time
that He or She files his or her Plea.
Sec. 2. Be it further enacted by the authority aforesaid that the
Defendant in all cases wherein he may suggest Fraud in the demand
of the Plaintiff shall have a right to file written interrogatories which
the Plaintiff shall answer in writing and file at the time he may be
required to file his replication or one month after issue Joined if no
replication should be necessary.
Sec. 3. Be it further enacted that every answer shall be full and
specific to all and every interrogatory that may be exhibited ; failing
to answer, or answering evasively shall be considered as an acknowl-
edgment of the Fact required to be answered and also a contempt to
the Court ; every Person answering interrogatories exhibited shall
swear that his, her or their answer contains the Truth the whole Truth
and nothing but the Truth to the best of his, her or their knowledge
and if he, she or they shall swear falsely therein he, she or they so
offending shall be deem'd guilty of Perjury.
Sec. 4. Be it further enacted by the authority aforesaid — That
all interrogatories and answers required to be filed by this Act shall
be laid before the Jury at the tryal who shall be Judges of the Truth
of the allegation they contain or the Facts they suggest and if they
find from the answer of the Plaintiff in any Case that Fraud has
taken place they may make such deductions from his Demand as
they may think right and in all cases when it shall appear that fraud
has been practised on the Plaintiff they shall allow him such dam-
ages as they may think just and right.
Sec. 5. Be it further Enacted by the authority aforesaid — That
this Act shall be considered a remedial one to all intents & purposes
whatever and that it shall be and continue to be in force from and
after the passage thereof. q.eo Fisher
Speaker of the House of Representatives
Approved Dec 25. 1812 Pierre Menard
Ninian Edwards president of the Council
66 ILLINOIS HISTORICAL COLLECTIONS
An Act concerning Jurors.
Be it Enacted by the Legislative Council and House of Repre-
sentatives and it is hereby enacted by the authority of the same —
That Housekeepers shall hereafter be deem'd qualifyed (there being
no other just exception to them) to serve on any Jury whatever. Any
Law to the contrary notwithstanding. This Act to be and remain in
force from and after the passage thereof.
Geo Fisher
Speaker of the House of Representatives
Pierre Menard
president of the Council
Approved Dec 25. 1812
Ninian Edwards
An Act to fix the Places of holding Courts in the several Counties.
Sec. 1. Be it enacted by the Legislative Council and House of
Representatives and it is hereby enacted by the Authority of the same.
That the Courts directed to be held by Law in the County of
Randolph shall hereafter be held in the Town of Kaskaskia and the
Courts directed by Law to be held in the County of Gallatin shall be
held in Shawano Town.
Sec. 2. Be it further enacted that the place of holding Courts
in the Counties of Madison, St CI air and Johnson shall be held at the
following places in the said Counties untill the Judges of the re-
spective Courts of Common Pleas in those Counties shall provide
proper accommodations at the places to be fix'd upon by the Com-
missioners in the respective Counties as is hereinafter provided to-
wit : In the County of Madison at the House of Thomas Kirkpatrick,
In the County of St Clair at the Court House in Cahokia, in the
County of Johnson at the House of John Bradshaw.
Sec. 3. Be it further enacted that for the purpose of fixing the
permanent Seat of Justice in the Counties of Madison StClair and
Johnson the following Persons are hereby appointed Commissioners
in the said Counties respectively towit : In Madison, Paul Beck, Doe-
tor Cadwell, Alexander Waddle, George Moor, James Rentfrow, John
Kirkpatrick and Ephraim Wood. In the County of StClair, James
Garritson, Nathan Chambers, Samuel Kenny, Nicholas Jarrott and
William Scott, Senior. In the County of Johnson, Hamlet Ferguson,
Nathaniel Green and Owen Evans, which said Commissioners or a
laws of 1812 G7
majority of them shall meet on the first Monday in February next at
the several places mentioned in the preceeding Section and having
so met they shall then proceed to designate in their respective Coun-
ties a convenient place for fixing a County Seat, for the Erection or
procurement of convenient Buildings for the use of the County taking
into view the situation of the Settlements, the Geography of the
County, the convenience of the People and the Eligibility of the place,
except Johnson the centre of which (or as near as possible) the said
Commissioners shall be bound to find and shall in no wise extent
more than Three Miles from said Centre for situation ; and for the
County of StClair as near the Centre as may be convenient to the
population of the Inhabitants thereof, which place so fix'd & deter-
mined upon the said Commissioners shall certify under their hands
and seals and return the same to the next Court of Common Pleas
in their respective Counties which said Courts shall cause an Entry
thereof to be made on their Records and it shall be the Duty of the
Courts of Common Pleas in the said Counties as early as practicable
after the place so designated shall be fix'd upon to cause suitable
Buildings to be provided thereat and to cause a purchase of such a
quantity of Land to be made for the use of the County and to Erect
a Court House and Jail and to make other improvements thereon as
they may deem expedient from time to time. This Act to be in force
from and after the passage thereof.
Geo Fisher
Speaker of the House of Representatives
Pierre Menard
Approved Dec. 25, 1812 president of the Concil
Ninian Edwards
An Act authorising the appointment of County Commissioners
& for other Purposes.
Sec. 1. Be it Enacted by the Legislative Council and House of
Representatives and it is hereby enacted by the authority of the same.
That the Courts of Common Pleas of the several Counties in this Ter-
ritory shall within fifteen days after the first day of January next
and within fifteen days yearly and every year thereafter or at any
special Court by them to be appointed for that purpose which they
are hereby authorised at any time to hold shall appoint a Commis-
sioner for the purpose hereafter mention 'd each of whom shall be-
68
ILLINOIS HISTOBICAL COLLECTIONS
fore they begin the duties of their respective offices take & subscribe
the following oath or affirmation before any Judge or Justice of the
said County viz. "I do swear (or affirm as the case may be) that
as Commissioner for the County of I will to the best of
my skill and Judgement diligently & faithfully execute the duties
of the office without favor, affection or partiality and that I will do
equal right & Justice to the best of my knowledge & understanding
in every case in which I shall act as Commissioner so help me God"
a certificate of which oath or affirmation shall be delivered to the
Commissioners respectively and a copy thereof transmitted without
delay to the Clerk of the Court of Common Pleas of the County to
be by him filed in his office in case of the death or refusal to act.
resignation or removal from the County of the said Commissioners
the said Court of Common Pleas shall as soon as may be thereafter
at any special Court to be held for that purpose appoint a Person
to supply such vacancy who shall take and subscribe the same oath
or affirmation (as the case may be) as by this act is directed to be
taken and subscribed by each Commissioner. Provided always that
no Sheriff or deputy Sheriff of any County shall be eligible to exer-
cise the duty of Commissioner under this act.
Sec. 2. Be it further enacted that the Commissioners List for
taking in the Lands subject to Taxation shall be in the form following
to wit :
o
<D CD
w
0
Persons Names
chargeable with
the Tax
Number
of acres
of Lands
S a
a
C a>
OS
U
oi o
73 a
'Z oi
1?
0 a
.c 0
a
In whose name
Patented
<v
GO
5
03
0
o
0)
QQ
03
V
2
laws of 1812 69
Sec. 3. And be it further Enacted that it shall be the duty of the
auditor & he is hereby authorised and empowered to apply for and
procure from the proper offices an abstract of all entries Locations
and all confirm 'd Lands by Legal authoritj^ held by individuals and
purchased from the United States of all Lands in the several Coun-
ties in this Territory noting- where & on what Creeks, water courses
&c. such Entries Locations confirmations & purchases have been made
with the names of Persons for whom entered Located & confirm 'd
& by whom purchased from the United States and it shall be the duty
of the auditor to transmit the said abstracts of Entries Locations &
confirmations of Land to the Clerks of the Respective Counties by the
first day of May next yearly and every year which Clerks shall de-
liver the said abstracts to the respective Commissioners as soon as
appointed which Commissioners shall again return such abstracts to
the Clerks respectively after said Commissioners have finished the
Business enjoin 'd by this Law.
Sec. 4. Be it further enacted that so much of the several Laws
as makes it the duty of the Sheriff in the respective Counties to take
in a List of Taxable property in each County annually shall be and
the same is hereby repealed.
Sec. 5. And be it further enacted that the Commissioners au-
thorised to be appointed by this Act to take in the Lists of Lands
in their respective Counties shall also take in a List of the Taxable
property in their Counties in the same manner and at the same time
and shall exercise the same Powers as heretofore directed and vested
in the Sheriff's of the several Counties by Law. That said Commis-
sioners shall be allow 'd Two dollars Per Day to be paid out of the
County Levy for the services last mentioned but they shall in no
instance charge the Territory and the County for the same days
service. That the Public auditor shall on failure of Non-residents
to list their Lands, List them from the best information he can get
whish List shall be proceeded on as if it has been made by Non-
residents themselves. That whenever Lands are Listed in one County
which lie in another they shall be sold and all such proceedings be
had thereon as if they lay within said County in which they may be
Listed. That in no instance shall this Law or that to which it is a
supplement be so construed as to oblige one Person holding a Bond
for conveyance and another holding the Legal Title to pay the Tax
for the same Tract of Land but payment by one shall be sufficient
70 ILLINOIS HISTORICAL COLLECTIONS
and the person holding such Bond for Conveyance shall pay said Tax.
That in all Cases the Treasurer shall pay off County Claims
according to Seniority, to ascertain which it shall be the duty of the
Clerks to furnish him with a List of the Claims and the times when
allow 'd which shall be a rule to all Treasurers.
That for any failure to execute any Duty enjoin 'd by this Act
on all and every Commissioner he or they so offending shall be sub-
ject to a fine of Three hundred Dollars and no Commissioner shall
without incurring such Penalty resign his office till after he has
perform 'd the services required of him for the year in which he
shall be appointed.
Each Commissioner shall previous to entering on the Duties of
his office give Bond with security to be approved by the Court of
Common Pleas in the Penalty of One Thousand Dollars to the Gov-
ernor of the Territory condition 'd for the faithful discharge of his
Duty which Bond shall be filed in the Clerks Office of said Courts.
Geo Fisher
Speaker of the House of Representatives
Pierre Menard
president of the Concil
Approved Dec 25. 1812
Ninian Edwards
An Act I'egulating Elections.
Sec. 1. Be it enacted by the Legislative Council and House of
Representatives and it is hereby enacted by the authority of the same.
That the next General Election for representatives to serve in the
General Assembly shall commence on the first Thursday of September
One Thousand Eight hundred and fourteen to be held biennially
thereafter and that the Election for Members to serve in the Legisla-
tive Council shall commence on the first Thursday of September One
Thousand Eight hundred and Sixteen and be held quadriennially there-
after at which respective times all qualifyed Voters shall have the
right to Vote for representatives to serve in the General Assembly
and Members of the Legislative Council consistently herewith — Pro-
vided that all votes shall be by ballot which shall be put into a Box
to be prepared for that purpose when they shall remain unopened
untill the close of each days Election and then they shall all be fairly
counted out b}r the Sheriff and Judges.
LAWS OF 1812 71
Sec. 2. Be it further Enacted that all Elections for a Delegate
to Congress shall be by Ballot and shall be conducted as all other-
Elections.
Sec. 3. Be it further Enacted that when any writ of any occas-
ional Election shall be issued by the Governor in case of the Death
or removal from Office of any representative or Member of the Legis-
lative Council or Delegate for Congress the same shall be directed
to the Sheriff of such County respectively for which such Representa-
tive or Member of the Legislative Council or Delegate for Congress
who is Dead or removed from Office shall have been Elected and the
Sheriff on receiving the Writ shall forthwith give due and Public
Notice throughout the County Ten Days before holding such Elec-
tion and the same shall be holden within Twenty Days after the writ
of Election is received by the Sheriff and conducted in the manner
aforesaid.
Sec. 4. Be it enacted by the authority aforesaid That in all other
respects all Elections shall be govern 'd by the Law of Indiana Terri-
tory entitled "a Law regulating Elections" approved the 17th day
of September One Thousand Eight hundred and Seven.
Geo Fisher
Speaker of the House of Representatives
Pierre Menard
president of the Council
Approved Dec 25. 1812
Ninian Edwards
An Act to amend an Act entitled "An Act to establish and
regulate Ferries."
Whereas the establishment of a plurality of ferries in the im-
mediate neighborhood of each other across wide and turbulent streams
is subversive of the objects contemplated by the act to which this
is an amendment. At no one point on either of those streams the
Ohio and Mississippi is the crossing so frequent as to warrant more
than one ferry nor could the expense incurred to the establishment
and maintenance of two be met and sustained for any length of time
where this competition is permitted without making considerable
sacrafice, hence ferries would be rendered unprofitable and the crafts
and force necessary for the speedy and safe conveyance of property
and persons could not be provided and kept up. The most wealthy
72 ILLINOIS HISTORICAL COLLECTIONS
might indeed make the sacrafice for a time with a certain prospect
of putting down all competitors who might in fact be entitled to more
indulgence that he who from speculative motives might apply for
an obtain license adjoining to an established ferry with a view of
monopoly and oppression for remidy whereof :
Sec. 1. Be it enacted by the Legislative Council and House of
Representatives and it is hereby enacted by the authority of the same.
That from and after the passag-e of this act no ferry shall be estab-
lished by the court of common pleas in any County in this territory,
across the Ohio and Mississippi rivers within less than two miles
of an established ferry. Provided nevertheless that nothing in this
act shall be so construed as to prevent the heirs of James Piggott
deed, from reestablishing their former ferry on the Mississippi river
opposite St. Louis and also that all ferries established by the laws
of Indiana are hereby declared established ferries in the Illinois
Territory unless repealed.
Sec. 2. And be it further enacted, That so much of the act to
which this is a supplement as comes within the purview of this act
shall be and the same is hereby repealed.
Geo Fisher
Speaker of the House of Representatives
Pierre Menard
President of the Council
Approved December 25th 1812
Ninian Edwards
United States of America, 1 Office
Iss.
State of Illinois. J of Secretary
I, GEORGE H HARLOW, Secretary of the State of Illinois, do
hereby certify that the foregoing is a true copy of a law passed at the
1st General Assembly of Illinois Territory as enrolled and printed in
the Session laws 1812 on pages 38, 39 & 40, [70-71] and the original
law having been lost from the files of this office this copy of the printed
law as above designated is substituted therefor.
now on file in this office. In witness whereof I hereto set my hand and
affix the Great Seal of State at the city of Springfield, this Twenty
eighth day of November A. D. 1874.
Geo H Harlow Secretary of State
[seal]
laws of 1812 73
An Act Supplimental to the several Laws concerning the Militia.
Sec. 1. Be it enacted by the Legislative Council and House of
Representatives and it is hereby enacted by the authority of the same
That the Fines which may hereafter be assess 'd by the Company
Officers of any Militia Company in this Territory according to Law
shall be collected by the Constables of the Townships in which such
Militia Companj^ may be or when the Persons reside on which such
Fine shall be assess 'd and it shall be the duty of the Commanding
Officer of each Company within three months after any Fine shall
be inflicted by the Officers of the Company to certify the same and
deliver to the Constable a Certificate thereof which said Constable
shall collect the amount thereof from the Person on whom the said
Fine shall be inflicted in the same manner as if the same was an
Execution from a Justice of the Peace and shall pay the amount there-
of to the Commanding officer of the Company within forty days
after the same shall come to his hands and shall be allowed by such
Commanding officer ten Per Cent on the amount Collected which
said Fines shall be appropriated by the Commanding Officers of Com-
panies towards furnishing Colors and music for their Companies and
other current expences thereof.
Geo Fisher
Speaker of the House of Representatives
Pierre Menard
president of the Council
Approved Dec 25. 1812
Ninian Edwards
An Act supplemental to an Act regulating the practice of the General
Court and Common Pleas and for other Purposes.
Sec. 1. Be it enacted by the Legislative Council and House of
Representatives and it is hereby enacted by the authority of the same.
That no Suit shall hereafter be commenc'd in this Territorj^ by any
Person who is a non-resiident or not a Freeholder therein untill he
shall file in the Clerks office a Bond with sufficient security who shall
be a Householder and Resident of the Territory or Freeholder there-
in condition 'd for the payment of all Costs that may accrue in conse-
quence thereof either to the opposite party or to the Officers of such
Courts which Bond shall be in the Form or to the purport as are
set forth in the Laws of the Territory now in force.
74 ILLINOIS HISTORICAL COLLECTIONS
Sec. 2. And be it further Enacted that so much of the Laws of
this Territory as require Rules to be held Monthly in the Clerks office
of the General Court and Courts of Common Pleas shall be and the
same are hereby repealed and that from and after the Passage of this
Law the Plaintiff shall file his declaration in Court or on before the
end of the Second day of the term to which the original writ shall be
returnable to which the Defendant shall file his Plea in open Court
in two Days thereafter to which the Plaintiff shall join issue or demur
in case an issue is tendered one day thereafter and in case a replication
is necessary such replication shall by the Plaintiff be filed in open
Court within two days after the filing* of the Defendants Plea and
all further pleadings when necessary shall be filed according to such
rules and regulations as the Court shall prescribe who are hereby re-
quired as far as it is practicable to cause all issues in Law and Fact
to be made at the term to which the original writ is returnable so
that the same may be tryed at the succeeding term but if the parties
mutually agree to make up an issue at Law or in Pact and by the same
at the return term such Trial may be had accordingly at such return
term.
Sec. 3. And be it further Enacted That so much of the Laws
of the Territory as directs Execution to be returnable at the Rule Days
in the Clerks Office shall be and the same is hereby repeal 'd and that
from and after the passage thereof all writs of Execution shall be
returnable on the first Day of the succeeding term of the Court from
which such Execution shall issue Provided there be thirty Days be-
tween the Teste and return of such writs of Execution the Sheriff
shall not be oblig'd to make return thereof before the first day of the
second term after the Teste of such writ. This Law shall be in force
from and after the Thirty first day of January next.
Geo Fisher
Speaker of the House of Representatives
Pierre Menard
Approved Dec 25. 1812 president of the Council
Ninian Edwards
An Act fo>' the removal and safe keeping of the ancient Records and
Papers in this Territory.
Whereas it has been suggested to this Legislature that certain
interpolations and Forgeries have lately taken place in one of the
laws of 1812 75
ancient record Books upon which the Titles of ancient Grants depend
— And — Whereas the Legislature thereupon sent for one of those
Record Books and inspected the same and are satisfied in their own
minds an interpolation has been made therein — Therefore
Sec. 1. Be it enacted by the Legislative Council and House of
Representatives and it is hereby enacted by the authority of the
same — That it shall be the duty of the Recorder of Randolph County
to deliver to the Secretary of this Territory on or before the fifteenth
Day of January next all the ancient Books, Records and Papers
which are filed in his office which bear date prior to the thirteenth
Day of July in the year One Thousand Seven hundred & Eighty
seven and shall take the said Secretary's receipt therefor which said
Secretary is hereby authorised to file the same in his office and be
safely kept by him as other Public archives & records of his office.
Sec. 2. Be it further enacted — That all copies or Transcripts
which may be made by the said Secretary from the said Records or
Papers and attested by him shall be as authentic in any Court of
Record in this Terrirory as if given by the Recorder of any County
and the Secretary shall never suffer or permit the said records or
Papers to be inspected by any Person unless in his presence or in the
presence of his express Agent. This act to be in force from and after
the passage thereof.
Geo Fisher
Speaker of the House of Representatives
Approved Dec 25.1812 Pierre Menard
Ninian Edwards president of the Council
An Act concerning the General Court.
Sec. 1. Be it enacted by the Legislative Council and House of
Representatives and it is hereby enacted by the authority of the same.
That the General Court shall hereafter be govern 'd and regulated
by the Law of the Indiana Territory entitled "an act regulating the
General Courts" approv'd 17th September 1807 except so far as the
said Law may be repugnant to the enactments hereinafter made.
Sec. 2. Be it further enacted by the authority aforesaid — That
the General Court shall hold two Sessions annually at Kaskaskia on
the first Mondays in May and November yearly & every year at each
of which Session the said Court shall go through with all the business
depending before them.
76 ILLINOIS HISTORICAL COLLECTIONS
Sec. 3. Be it further enacted by the authority aforesaid that the
said General Court shall not hereafter take original Jurisdiction of
any Sum under Five hundred Dollars.
Sec. 4. Be it further Enacted by the authority aforesaid that in
all Cases and upon all points that shall be hereafter adjudicated by
the said General Court each Judge thereof shall seperately make a
plain but full statement of the Case or points decided which statement
with his opinion thereon shall be by him reduced to writing & be
recorded by the Clerk in a record Book to be provided for that pur-
pose & for the convenience of recurring to their opinions it shall be
the Duty of the Clerk to annex thereto at the expiration of each term
an alphabetical List of the Cases decided.
Sec. 5. Be it further Enacted by the authority aforesaid that
hereafter there shall be no Writ of Certiorari appeal or Writ of
Error or any proceeding in the Nature of either to the General Court
from any Court in this Territory upon any matter of Fact but in
future the General Court shall take cognizance of Errors in Law
only by writ of Error or appeal neither of which shall issue in any
Case whatever untill after final Judgement in the Court of Common
Pleas and in no case shall there be any appeal from the Judgement
of a Court of Common Pleas on an appeal from the Judgement of a
Justice of the Peace but that all appeals from the Judgement of
Justices of the Peace shall be final in the Court of Common Pleas.
Sec. 6. Be it Enacted by the authorhy aforesaid that nothing in
this Law contain 'd shall be construed to affect any Suit now depending
in the General Court either at Cahokia or KasKaskia but all those
so depending shall be tried and finally dispos'd of as they would have
been had this Law never passed.
Sec. 7. Be it further Enacted by the authority aforesaid that so
much of the Law of the Indiana Territory establishing Circuit Courts
be and the same is hereby repealed.
Sec. 8. Be it further Enacted by the authority aforesaid that
all and every Law within the purview of this act shall be and the same
are hereby repeal'd And that this act shall commence & be in force
from the passage thereof.
Geo Fisher
Speaker of the House of Representatives
a i t-w or -lo-io Pierre Menard
Approved Dec 25. 1812 . ., „ ; ; _,
XT _ president of the Council
Ninian Edwards
laws of 1812 77
An Act concerning fines and forfeitures
Be it enacted by the Legislative Council and House of Repre-
sentatives and it is hereby enacted by the authority of the same, That
all fines and forfeitures that may hereafter be recovered in the respec-
tive Courts of Common Pleas shall be appropriated in behalf of the
County levy in each county in which such fines and forfeitures shall
be recovered any law to the contrary notwithstanding.
This act to commence and be in force from and after the passage
thereof.
Geo Fisher
Speaker of the House of Representatives
Pierre Menard
President of the Council.
Approved December 25th 1812
Ninian Edwards
United States of America, j Office
|-ss.
State of Illinois. j of Secretary
I, GEORGE H HARLOW, Secretary of the State of Illinois,
do hereby certify that the foregoing is a true copy of a law passed
at the 1st General Assembly of the Illinois Territory as enrolled and
printed in the Session laws 1812 on pages 48 & 49 [75-76] ; the original
law having been lost from the files of this office this copy of the printed
law as above designated is substituted therefor
now on file in this office. In witness whereof I hereto set my hand
and affix the Great Seal of State at the city of Springfield, this
Twenty eighth day of November A. D. 1874.
Geo H Harlow Secretary of State.
[seal]
An Act to repeal an Act entitled "an Act to prevent
unlawful Gaining"
Sec. 1. Be it enacted by the Legislative Council and House of
Representatives and it is hereby enacted by the authority of the same
That the Law pass'd or adopted by the Governor and Judges of the
Illinois Territory on the ninth day of March in the year One Thou-
sand Eight hundred and ten entitled "an Act to prevent unlawful
78 ILLINOIS HISTORICAL COLLECTIONS
Gaining" shall be and the same is hereby repeal 'd.
Geo Fisher
Speaker of the House of Representatives
Pierre Menard
Approved Dee 25. 1812 president of the Council
Ninian Edwards
An Act fixing the Salaries of certain Public Officers for one year.
Sec. 1. Be it enacted by the Legislative Council and House of
Representatives and it is hereby enacted by the authority of the same.
That the following shall continue for one year commencing from the
first day of January next to be the Salaries of the Attorney General,
Auditor of Public Accounts, and Territorial Treasurer: viz :
For the Attorney General the Sum of One hundred and seventy five
Dollars, For the Auditor of Public Accounts the sum of One hun-
dred and fifty Dollars, For the Public Treasurer the Sum of One
Hundred and Fifty Dollars which said several Salaries shall be paid
out of the Public Treasury. This Act to Commence and be in force
from and after the passage thereof
Geo Fisher
Speaker of the House of Representatives
Pierre Menard
Approved Dec 25. 1812 president of the CounciU
Ninian Edwards
An Act supplemental to an Act entitled "an Act concerning the
General Courts.
Sec. 1. Be it enacted by the Legislative Council and House of
Representatives and it is hereby enacted by the authority of the same.
That any Person who shall hereafter commence a Suit in the General
Court for any Tort and shall not recover a Sum amounting to or
exceeding Five hundred Dollars shall be amerced in the Costs thereof
any Law to the contrary notwithstanding. This Act to commence
and be in force from and after the passage thereof.
Geo Fisher
Speaker of the House of Representatives
Pierre Menard
Approved Dec 25. 1812 president of the Council
Ninian Edwards
laws or 1812 79
An Act snpplimental to an Act entitled "an Act to fix the places of
holding Courts in the several Counties."
Sec. 1. Be it enacted by the Legislative Council and House of
Representatives and it is hereby enacted by the authority of the same
That the Commissioners appointed by the Laws to which this is a sup-
plement shall before they enter on the Duties enjoin 'd on them with
regard to fixing the seats of Justice in the several Counties take the
following Oath or affirmation (as the case may be) before one of the
Judges of the Court of Common Pleas or a Justice of the Peace towit :
I do solemnly swear or affirm (as the case may be) that I will honestly
and faithfully fulfil to the best of my Judgement the duties required
of me by Law and that in giving my opinion as to the proper place
for fixing the Seat of Justice I will be intirely govern 'd by what I
esteem the true intent and meaning of the Law without favor par-
tiality or affection for any Person or Thing —
This Law shall be in force from and after its passage.
Geo Fisher
Speaker of the House of Representatives
Pierre Menard
president of the Council
Approved Dec 25. 1812
Ninian Edwards
An Act for Printing the Laws of this Territory.
Sec. 1. Be it Enacted by the Legislative Council and House of
Representatives and it is hereby enacted by the authority of the Same.
That the Governor of the Territory shall be and he is hereby author-
is 'd to contract for the printing of Four hundred Copies of the Laws
of this Territory and in payment for the same the said Governor shall
be and he is hereby authoris'd to give an order or orders on the Audi-
tor who shall issue a Warrant or Warrants for the same bearing
interest from their dates respectively untill paid which shall be
receiv'd in payment for Taxes or payable out of the General Fund
Geo Fisher
Speaker of the House of Representatives
Pierre Menard
a t t^ nr -in-ir. president of The Council
Approved Dec 25. 1812 1
Ninian Edwards
80 ILLINOIS HISTORICAL COLLECTIONS
An Act making appropriations of Money for the ensuing year and
for other Purposes.
Sec. 1. Be it so enacted by the Legislative Council and House
of Kepresentatives and it is hereby enacted by the Authority of the
same. That the Sum of One Hundred Dollars is hereby appropriated
for Contingent expences for the year One Thousand Eight hundred
and thirteen and that all the Monies which shall be receiv'd into the
Territorial Treasury during the Year One Thousand Eight hundred
and thirteen except as above appropriated for contingent expences
shall be a General Fund for all Monies allowed by Law which shall
not be directed to be paid out of the contingent Expences. The said
Sum of Money allowed for contingent expences shall be subject to
the payment of such allowances as the Governor shall draw for on
account of expresses and other incidents which may be necessary
and cannot be foreseen by the Legislature and for the distribution
of the Laws a statement whereof shall be laid by the Governor and
the Auditor before the Legislature at the next Session.
Sec. 2. Be it further enacted that there shall be paid out of the
Territorial Treasury on the Warrant of the Auditor to each Member
of the Legislative Council and House of Representatives the Sum
of Two Dollars Per day for each days attendance at the present
Session of the Legislature and at the rate of two dollars per day
for every Twenty Miles travel to and from the seat of Government
to their places of residence by the most usual road.
Sec. 3. Be it further enacted that the Secretary of the Legisla-
tive Council and Clerk of the House of Representatives shall in
like manner receive for their respective Services at the present Ses-
sion the Sum of Three dollars each per day and the Enrolling and
Engrossing Clerk and the Door keeper to both Houses shall receive
the sum of Two Dollars each per Day for every days attendance at
the present Session.
Sec. 4. Be it further enacted That the following persons be
allow 'd the sume hereinafter mention 'd towit : To William Shannon
for Stationary furnish 'd to both Houses during the present Session
Fourteen Dollars and Seventy five cents.
To Thomas Van Swearengen for sundry articles furnish 'd dur-
ing the present Session Four Dollars and Sixty two and an half Cents.
To William Morrison for an axe Four Dollars, To Philip Fouke
for four Ink Stands, One Dollar. To Hugh H Maxwell agent for the
LAWS OF 1812 81
Heirs of Elijah Backus deceas'd for a House for the use of the
Legislature during the present Session One Dollar per day for each
day the same may have been occupied. To Hugh H Maxwell for Fire
Wood furnish 'd to both Houses of the Legislature during the present
Session the Sum of Ten Dollars.
Sec. 5. Be it further enacted that the Compensation which shall
and may be due to the Members and Officers of the Legislative Council
shall be certified by the President thereof and that those which may
or shall be due to the Members and Officers of the House of Repre-
sentatives as also the engrossing Clerk and Door keeper and to the
said Hugh H Maxwell for House rent shall be certified by the Speaker
of the House of Representatives which Certificate shall be to the Audi-
tor sufficient evidence of Claim and he shall thereupon issue Warrants
on the Territorial Treasury for the amount thereof which said War-
rants shall bear interest from the date thereof untill paid at the
Treasury.
Geo Fisher
Speaker of the House of Representatives
Pierre Menard
president of the Council
Approved Dec 26. 1812
Ninian Edwards
an Act to amend the Militia Law of the Territory.
Sec. 1. Be it enacted by the Legislative Council and House of
Representatives and it is hereby enacted by the authority of the same —
That the Brigade Major and inspector shall not hereafter be required
to attend any Battallion Musters and that whenever a resignation of
or removal from the Office of Adjutant General and Brigade Major
and inspector shall take place the Governor of the Territory shall have
a right to appoint an Adjutant General who shall execute the Duties
of Brigade inspector and Major as well as the duties of Adjutant
General.
Geo Fisher
Speaker of the House of Representatives
Pierre Menard
president of the Council
Approved Dec 25. 1812
Ninian Edwards
82 ILLINOIS HISTORICAL COLLECTIONS
An Act concerning Clerks Fees in the Court of Chancery and for
other purposes.
Sec. 1. Be it Enacted by the Legislative Council and House of
Representatives and it is hereby enacted by the Authority of the same.
That it shall be the Duty of the Clerk of the Court of Chancery to
make up compleat records of Cases decided in the Court of Chancery
in the same manner as the Clerks of the Courts of Common Pleas and
Clerk of the General Court are now by Law directed to do and the
Clerk of the said Court of Chancery shall be entitled to charge
demand and receive the same Fees as in similar Cases is allowed by
Law to the Clerk of the General Court. And where the business
shall be different from that contain 'd in the Bill of Fees allow 'd to
the Clerk of the General Court the said Court of Chancery shall
regulate the same and make a record thereof and the said Clerk
of the Court of Chancery shall put his Fee Bills into the hands of the
Sheriff of the several Counties at the time as other Clerks are now
by Law required to do which said Bills shall be collected in the same
manner as other officers Fees.
Geo Fisher
Speaker of the House of Representatives
Pierre Menard
Approved Dec 25. 1812 president of the Council
Ninian Edwards
«s.
United States of America,
State of Illinois. J
Office of the Secretary of State.
I, Louis L. Emmerson, Secretary of State of the State of Illinois,
do hereby certify that the foregoing is a true and correct copy of the
Acts passed by the Legislative Council and House of Representatives,
of the Illinois Territory in 1812, as compiled from the original Acts
on file in this office.
IN WITNESS WHEREOF, I hereto set my hand and
[seal] affix the Great Seal of the State of Illinois, at the city of
Springfield, this 20th day of May, A. D. 1920.
Louis L. Emmerson,
Secretary of State.
LAWS
AND
JOINT RESOLUTION
PASSED
BY
TEE LEGISLATIVE COUNCIL
AND
HOUSE OF REPRESENTATIVES
OF
ILLINOIS TERRITORY
AT
THEIR SECOND SESSION
HELD
AT KASKASKIA
IN 1813
(From the first printing from the original records by
The Chipman Law Publishing Company, 1920.)
A LIST OF LAWS.
Page
An Act for the Collection of Taxes in Madison, St. Clair, Johnson and
Galletin Counties 85
Altering the June Term of the Court of Common Pleas in Randolph
County 86
Concerning Proceedings in Civil Cases 86
For the Relief of Dunkards, Quakers, Etc., From Bearing Arms 87
Supplemental to the Militia Law 88
Concerning Fines and Forfeitures 89
Prohibiting Trading with Indians, Etc 89
Altering the Time of Holding Courts of Common Pleas in Galletin
County 90
To Prevent the Migration of Free Negroes Into the Territory 91
Relating to Elections 93
Concerning Appeals From Judgments of Justices of the Peace to County
Courts 94
Regulating Proceedings in Civil Cases 94
Regulating the General Court 98
Fixing the Places for Holding Court in Madison, St. Clair and Johnson
Counties 108
Concerning Granting Letters Testamentary and Letters of Administra-
tion 110
Relating to Fees 113
For the Relief of the Sheriff of Randolph County 113
Relating to Taxation 114
Making Appropriations for the Ensuing Year 116
Additional Act Relating to Elections 118
Concerning the Town of Kaskaskia 118
Establishing the Boundary Lines of Galletin County 120
Establishing the Boundary Line Between Randolph and St. Clair
Counties 120
Joint Resolution 121
LAWS OF ILLINOIS TERRITORY
Enacted in 1813.
An Act to enforce the assessment and collection of taxes in the
counties of Madison StClair Johnson and Galletin for the year 1813
and for other purposes.
Whereas it has been represented to the General Assembly that
the courts of Common Pleas in the counties of Madison and StClair
omitted to appoint county commissioners in those counties until after
the time required by law for county commissioners to finish and
make return of the lists of Taxable property for the present year. An
whereas it is also represented that the court of Common Pleas in
the county of Johnson has failed to appoint any commissioner for
said county. And that the County Commissioner for the County of
Galletin has neglected to take in and return a list of lands in said
county for the present year as the law requires therefore.
Sec. 1. Be it enacted by the Legislative Council and house of
Representatives and it is hereby enacted by the authority of the same,
that the sheriffs of Madison & StClair Counties shall and they are
hereby authorised and required to collect the county and land tax
in their respective counties according to the commisssioners lists
in their respective Counties for the present year and shall finish
the same and make settlement with the auditor for the amount of
land tax on or before the first day of March next and with the courts
of Common Pleas in their respective counties for the county taxes
at their first term for county business which shall be holden in the
counties after the said first day of March next and shall be allowed
the same credits for delinquents as if the assessment had been made
and returned to them for collection by the time required by law and
in case they or either of them shall fail to perform the duties required
by this act by the time appointed, they shall be subject to be pro-
ceeded against in the same manner as if the lists had been made and
put into their hands by the time required by aw.
Sec. 2. Be it further enacted, that the county commissioner who
shall or may be appointed in the county of Johnson to list the taxable
property in said county for the year 1814 shall also make and return
lists of taxable property for the year 1813 which said county list and
85
86 ILLINOIS HISTORICAL COLLECTIONS
list of land shall be proceeded upon in the same manner and be
collected and accounted for at the same time and in the same manner
as directed by law for the year 1814.
Sec. 3. Be it further enacted that the commissioner who may
be appointed in Galletin Count}' to make lists of Taxable property
for the year 1814 in said county shall at the same time make and
return a list of lands in said county for the present year, which said
list so made shall be proceeded upon and collected and accounted for
by the sheriff of said county at the time and in the same manner as
directed by law for collecting and accounting for the taxes the year
1814.
Geo Fisher
Speaker of the House of Representatives
Pierre Menard
president of the Council
Approved December 1st, 1813
Nat Pope
An Act to alter the June term of the court of Common Pleas in
Randolph County.
Be it enacted by the Legislative Council and house of Represen-
tatives of the Illinois Territory and it is hereby enacted by the author-
ity of the same That the term of the court of Common Pleas of Ran-
dolph county directed by law to be holden on the fourth Monday
in June shall be and the same is hereby altered and changed to, & to
be hereafter holden on the third monday in June yearly and every
year, Any laws or parts of laws to the contrary notwithstanding,
This act to commence & be in force from and after the passage thereof
Geo Fisher
Speaker of the House of Representatives
Pierre Menard
president of The Council
Approved December 1st 3813
Nat Pope
An Act to repeal an act entitled "am act concerning proceedings
in civil cases
Be it enacted by the Legislative Council and house of Represen-
tatives of the Illinois Territory. That an act entitled "an act con-
LAWS OF 1813 87
cerning proceedings in civil cases" passed by the Legislature of this
Territory at their last session and approved by the Governor the
nineteenth day of December one thousand eight hundred and twelve
be and the same is hereby repealed. This act to be in force from and
after the passage thereof.
Geo Fisher
Speaker of the House of Repts.
Pierre Menard
president of The Council
Approved December 1st 1813
Nat Pope
An Act for the relief of Dunkards, Quakers and other Religious
Persons eonscienciously scrupulous of bearing Arms.
Whereas it has been represented to the General Assemly that
there are certain Religious denominations of Persons called quakers
and. Dunkards or Tunkers whose religious tenets or persuasions are
averse to the principle of bearing arms and of Mustering as Militia
men or being engaged in Military operations therefore
Sec. 1. Be it enacted by the Legislative Council and House of
Representatives of the Illinois Territory and it is hereby enacted by
the authority of the same, That where any person now is or hereafter
may be enrolled by any captain or commanding officer of any Militia
company in this Territory and whose religious tenets or persuasions
are averse to the principle of bearing arms or being engaged in
Military operations, it shall and may be lawful for the captain or
commanding officer aforesaid on the application of any such Militia
man, to exempt him from attendance at any company, Battallian or
Regimental muster upon the said Militia man producing annually to
such commanding officer a receipt from the sheriff of the county for
the sum of three Dollars which said receipt the sheriff is hereby
authorised to give to any such Militia man on his paying the sum
aforesaid which money so received by any sheriff shall be accounted
for by him and paid into the county Treasury at the time of making
his settlement with the court for the county taxes and shall be ap-
propriated to the use of the county, Provided Nevertheless that noth-
ing in this act contained shall be so construed as to exempt any such
Militia man from being compelled to perform his tour of duty as
other Militia men, when there shall be any detachment required
OO ILLINOIS HISTORICAL COLLECTIONS
from the Militia of this Territory. But that all such Militia men
shall perform such tour by himself or substitute as is now provided
by law. This act shall commence and be in force from and after the
passage thereof.
Geo Fisher
Speaker of the House of Representatives
Pierre Menard
president of The Council
Approved December 1st 1813
Nat Pope
An Act supplimental to an act to amend the Militia Law of
this Territory.
Whereas it is incumbent on the Adjutant General hereafter to
discharge the duties of the offices of Adjutant General and Brigade
Major and Inspector and whereas the attention to the discipline of
the Militia in a republic is at all times highly important, but more
especially in this Territory so vulnerable to sudden and unexpected
invasions by a savage enemy living on its borders ; and whereas in
the discharge of the duties of those offices, the Adjutant General
will necessarily incur considerable expense and loss of time in record-
ing and distributing the orders of the commander in chief and at-
tending and inspecting the different Regiments in the Territory
Therefore
Sec. 1. Be it enacted by the Legislative Council and House of
Representatives of the Illinois Territory and it is hereby enacted by
the authority of the same That the Adjutant General shall receive
an annual compensation of one hundred Dollars out of the public
Treasury for the services required of him by law Provided however
that the auditor of Public accounts shall not draw any warrant in
favour of the Adjutant General until he shall receive a certificate
from the Governor that the said Adjutant General has faithfully dis-
charged all the duties required of him by law. That said Adjutant
General shall produce to the Governor a certificate from the com-
mandant of each Regiment, that he has performed all the duties re-
quired of him by law in his regiment and if it shall appear to the
Governor from the returns made by the Adjutant General that he
has failed in anjT part of his duty, then and in that case the Gov-
ernor shall only certify to the auditor for what part of the salary
laws of 1813 89
he may think him entitled to by the provisions of this act.
Sec. 2. Be it further enacted, That the Adjutant General as
Brigade Major and Inspector shall not hereafter be required to
attend more than two Days in any year in each Regiment for the
purpose of superintending Regimental Drill musters any laws or
parts of Laws to the contrary notwithstanding This act shall com-
mence and be in force from and after the first day of January next.
Geo Fisher
Speaker of the House of Representatives
Pierre Menard
Approved December 1st 1813 president of the Council
Nat Pope
An Act concerning Fines & Forfeitures.
Sec. 1. Be it enacted by the Legislative Council and House of
Representatives and it is hereby enacted by the authority of the same,
That all fines and Forfeitures that may hereafter be recovered in the
respective Courts of Common pleas shall be appropriated in behalf
of the County levy in each County in which such fine and forfeiture
shall be recovered. Any Law to the contrary notwithstanding.
This act to commence and be in force from and after the passage
thereof
Geo Fisher
Speaker of the House of Representatives
Pierre Menard
Approved December 1st 1813 president of The Council
Nat Pope
An Act Prohibiting the trading with Indians &c.
Whereas it has been represented by the Executive of this Terri-
tory and the chief of the tribe of the Kaskaskia Indians, that the
vending of ardent spirits and other entoxicating liquors, to the Indians
of the said tribe is productive of great evils to the community and
of serious Injury to the said Tribe, and that to tolerate the purchase
of arms, clothing, Horses, and other articles necessary for their use
and comfort, would tend to encourage intemperance and wretched-
ness, to which these unfortunate beings are hastening for remedy
whereof.
90 ILLINOIS HISTORICAL COLLECTIONS
Sec. 1. Be it enacted by the Legislative Council & house of Rep-
resentatives & it is hereby enacted by the authority of the same. That
if any trader or other person whosoever residing, or coming into, or
passing through the said Territory shall presume to furnish, vend,
or sell, or shall procure to be vended, or, sold upon any account what-
ever to any Indian or Indians being within this Territory or waters
adjoining to the same any Rum, Brandy, whiskey or other intoxicat-
ing liquor, he, she, or they so offending, shall on conviction of the
same, by presentment or Indictment forfeit and pay for every such
offence, any sum not exceeding twenty Dollars, nor less than five.
One half to the use of the Territory and the other to the informer —
Sec. 2. Be it further enacted, that if any person or persons,
shall purchase or receive of any Indian in the way of Barter or trade,
a Gun or other article commonly used in hunting, or any instrument
of Husbandry or cooking utensil — or clothing or Horse shall forfeit
& pay any sum not exceeding fifty Dollars nor less than ten to the
use of the Territory to be recovered as is directed in the former sec-
tion one half to the use of the Territon- and the other to the informer
— -Provided that nothing herein contained shall be so construed as to
restrain any person from trading with Lewis Decoigne the chief of
the Kaskaskia Indians for any article that he may Deem necessary
in behalf of said tribe nor so as to impair or weaken the powers and
authority that now are, or at any time hereafter may be vested in
the Governor, or other person, as superintendent or agent of Indian
affairs, or commissioner plenipotentiary for Treating with Indians,
within this Territory. This act to be in full force from and after
the first day of January next.
Geo Fisher
Speaker of the House of Representatives
Pierre Menard
president of The Council
Approved Dec 8, 1813
Ninian Edwards
An Act to alter the time of holding Courts of Common Pleas in
Galletin County.
Be it enacted by the Legislative Council and house of Repre-
sentatives of the Illinois Territory and it is hereby enacted by the
authority of the same That the terms of the court of Common Pleas in
LAWS OF 1813 91
Galletin County shall be and the same are hereby directed to be
holden on the third Mondays in January, March, May, July, Septem-
ber and November yearly and every year. Any laws or parts of
laws to the contrary notwithstanding'. This act shall be in force
from and after the first day of January next.
Geo Fisher
Speaker of the House of Representatives
Pierre Menard
president of The Council
Approved Feb [sic] 8,1813
Ninian Edwards
An Act to prevent the Migration of free Negroes and Mullattoes
into this Territory and for other purposes —
Sec. 1. Be it enacted by the Legislative Council and House of
Representatives of the Illinois Territory That it shall not be lawful
for any free negro or mullatto to migrate in this Territory, and every
free negro or mullatto who shall come into this Territory contrary to
this act shall and may be apprehended and carried by any citizen
before some Justice of the peace of the county where he shall be taken ;
which Justice is hereby authorised to examine, and order to leave
the Territory every such free negro or Mullatto, which said free
negro or Mullatto shall be allowed from the time of his examination
before the Justice of the peace fifteen days to depart from the Terri-
tory, and if after the expiration of the said fifteen days he or she
shall be found in the Territory he or she shall be carried before a
Justice of the peace who shall order him or her to be whipped on his
or her Bare back not exceeding thirty-nine stripes nor less than
twenty-five stripes and if he or she shall thereafter remain in the
Territory fifteen days he or she may be punished in the same manner
as aforesaid and so on as long as he or she shall refuse or fail to
depart from the Territory.
Sec. 2. Be it further enacted that all free negroes and Mullat-
toes now residing in the Territory shall within six months after the
passage of this act apply to the clerk of the court of Common Pleas
of the County in which such negro or mullatto may reside to be regis-
tered and numbered by the clerk, which register shall specify the
name, age, colour, and stature of said free negro or mullattoe, a copy
of which register signed by the clerk shall be delivered to the said
92 ILLINOIS HISTORICAL COLLECTIONS
free negro or mullatto for which the clerk shall demand of him or
her the sum of fifty cents — Provided however that no negro or
mullatto as aforesaid, shall claim the benefit of this section until he,
she, or they produce to such clerk satisfactory evidence that he, she,
or they is, or are entitled to freedom — Provided also that no negro
or mullato who is claimed as a servant or slave by any person or
persons shall be entitled to the benefit of this section.
Sec. 3. Be it further enacted that if any such Free negro or
Mullatto being of the age of twenty-one years shall neglect to procure
such certificate it shall be the duty of any Justice of the Peace of the
county wherein he or she may be found to order him or her to leave
the Territory as in the first section of this act, and the said free negro
or mullatto shall be subject to the same penalties for refusing to
leave the Territory as is provided in the first section of this act.
Sec. 4. Be it further enacted that if any such free negro or mul-
lattoe shall hereafter be convicted before any Justice of the peace of
the county where the offence was committed, of stealing, or harbour-
ing runaway negroes or mullattoes or slaves belonging to persons
either in this Territory or elsewhere. The said Justice of the peace
whose duty it shall be to take cognizance of such offences, shall order
him or her to receive on his or her bare back not less than thirty-nine
nor more than fifty lashes and the Justice shall order him or her to
depart from Territory in thirty days, and if such free negro or
mullatto shall neglect to depart accordingly, he or she shall be dealt
with in the same manner as is provided in the first section of this act.
Sec. 5. Be it further enacted that any such free negro or Mul-
latto who is required by this act to register himself with the clerk as
aforesaid, shall at the same time register with the said clerk in the
same manner all such free negroes or Mullattoes residing with him or
her as may be under the age of twenty-one years. And on failure
thereof such free negroes & Mullatoes being under the age of twenty-
one years may by any citizen be carried before the court of common
pleas of the county, whose duty it shall be to bind them out until
they attain the age of twenty-five years. This act to commence and
be in force from and after the passage thereof.
Geo Fisher
Speaker of the House of Representatives
Pierre Menard
Approved Dec 8, 1813 president of The Council
Ninian Edwards
laws op 1813 93
An Act supplimental to an act entitled "An act regulating elections
passed the twenty fifth day of December 1812.
Whereas voters have hitherto been obliged by law to vote by
Ballot, and the ignorant as well as those in embarrassed circumstan-
ces are thereby subject to be imposed upon by electioneering Zealots —
And whereas it is inconsistent with the spirit of a Representative
Republican Government. Since the openeing for bribery and cor-
ruption is so manifest, which should ever be opposed and suppressed
in such a Government, for remedy whereof
Sec. 1. Be it enacted by the Legislative Council and house of
Representatives and it is hereby enacted by the authority of the same,
that at all elections for a Delegate or Delegates to Congress, and for
members of the General assembly of this Territory, all votes shall be
given viva voca in presence of the Judges of the Election and all
such candidates as may be present.
Sec. 2. Be it further enacted. That is shall be the duty of the
sheriff of each County in which such Election may be holden to at-
tend, and when the voter shall say for whom he votes, it shall be
the duty of such sheriff to cry the name of the voter, and also the
person or persons for whom he votes distinctly
Sec. 3. It shall be the duty of the clerks of the courts of common
pleas to attend (in their respective counties) all such Elections as
aforesaid, and keep the poll thereof in the manner herein after pro-
vided (that is to say) he shall enter the names of the candidates in
a Book for that purpose to be kept, and shall also enter the name of
each voter on the same Book, and shall designate for whom he votes
by making a mark under the person or persons name or names for
whom he votes directly opposite to such voter's name — for which
service such clerks shall be allowed the sum of two Dollars per day
for each day they may be required to attend such elections, any laws
or parts of laws to the contrary notwithstanding. This act to com-
mence and be in force from and after the passage thereof.
Geo. Fisher
Speaker of the House of Representatives
Pierre Menard
president of The Council]
Approved. Dec, 8 1813
Ninian Edwards
94 ILLINOIS HISTORICAL COLLECTIONS
An Act to repeal an act entitled "An act concerning appeals fi4om
the Judgments of Justices of the Peace to the County Courts.
Be it enacted by the Legislative Council and house of Repre-
sentatives of the Illinois Territory. That an act entitled "An act
concerning- appeals from the Judgments of Justices of the peace to
the County Courts, adopted from the Kentucky Code and passed by
the Governor and Judges of the Illinois Territory on the twenty
sixth day of January in the year one thousand eight hundred and
ten be and the same is hereby repealed.
Sec. 2. Be it further enacted that appeals from the Judgments
of Justices of the peace, shall hereafter be regulated by an act entitled
"an act, establishing courts for the trials of small causes" passed by
the General Assembly of the Indiana Territory on the Seventeenth
day of September in the year of our Lord one thousand eight hundred
and seven any thing in any law to the contrary contained notwith-
standing
Sec. 3rd. Be it further enacted, that in all cases where any
Justice of the Peace in any action brought before him, shall enter
Judgment against the plaintiff for the sum of two Dollars or upwards
the said Plaintiff shall have a right to appeal thereform in the same
manner as appeals are provided for by this law. Any law or usage
to the contrary contained notwithstanding.
This act to be in force from and after the passage thereof.
Geo Fisher
Speaker of the House of Representatives
Pierre Menard
president of The Council
Approved Dec 9, 1813
Ninian Edwards
An Act to Regulate proceedings in civil cases and for other pu?*poses.
Sec. 1. Be it enacted by the Legislative Council and House of
Representatives of the Illinois Territory. That it shall be the duty
of every person suing out a writ to file by himself or agent with the
clerk of the proper Court a declaration or Petition to the Court or
other Statement in writing, containing the true nature of his, her,
or their demands or complaint and if upon any instrument of writing
or account such declaration petition or statement shall be accompanied
with a copy of the writing or account whereupon the clerk of the court
laws of 1813 95
shall endorse on -such declaration petition or Statement or attach
thereto an order to the sheriff in the nature of a summons if Bail be
not required or a capias if Bail be required, which said summons or
capias shall be returnable to the next succeeding court if there be
fifteen days between the date thereof and the court, otherwise the
said clerk shall make the said summons or capias returnable to the
second court after the date thereof.
Sec. 2. It shall be the duty of the Sheriff to execute each writ
on the Defendant fifteen days before the Term to which it is made
returnable, by reading the Declaration, and summons to the Defen-
dant if the Defendant does not refuse to hear, but if the Defendant
refuses to hear him read then it shall be the duty of the Sheriff to
inform him of the contents of the summons — If upon a capias the
sheriff shall take the Defendant into custody, and read to him the
Declaration, and Capias in all cases upon summonses and capiases
it shall be the duty of the Sheriff if required, to deliver to the De-
fendant a copy of the Declaration, and summons, or capias, upon
the Defendant's paying to him for copying the same, at the rate of
fifteen cents for each hundred words.
Sec. 3. It shall be the duty of the sheriff to whom such writ of
capias ad respondendum may be directed to take the Body of the
Defendant or Defendants, and commit him or them to the Common
Jail of the County or to take a Bond to himself from the Defendant
with sufficient surety or sureties conditioned that the Defendant or
Defendants (as the case may be) if Judgment be given against him
or them, shall pay and satisfy the costs and condemnation of the
court or surrender his, her, or their body or bodies in execution for
the same or that, the surety or sureties will do it for him or them —
Which Bond the sheriff shall return together with the Writ on the
first day of the Term to which the Writ is returnable — And if the
sheriff does not return a Bail Bond, or the Bail returned be adjudged
insufficient by the Court, and the Defendant or Defendants shall fail
to perfect, his, her, or their Bail instanter, if ruled to perfect Bail
the sheriff shall be made a Co-Defendant and be entitled to the same
rights, and liable to the same Judgment that he would have been if
he had been made Defendant by the Writ. Provided that all ques-
tions concerning the sufficiency of Bail shall be made and deter-
mined at the Court to which the writ is returnable — And Provided
also that in civil cases no person shall be held to Bail in a county in
96 ILLINOIS HISTORICAL COLLECTIONS
which he does not reside if he be a resident of the Territory — And if
any snch person shall be arrested and imprisoned or held to Bail in a
civil cause, he, she, or they may be discharged from his, her, or their
arrest or imprisonment or Bail upon Habeas Corpus issued by a
Judge of the General Court of Court of Common Pleas unless the
plaintiff can shew to the Judge that the debt was contracted or to be
paid in the county where the arrest is made or that the Defendant
or Defendants are removing from the Territory. In case he, she, or
they, be discharged by the Judge as aforesaid, the suit shall progress
in the same manner, as if Bail was not required.
Sec. 4. In all cases where the Bail shall be Judged insufficient
and Judgment shall be obtained against the Sheriff he shall have the
same remedy against the Estate of the Bail as against the estate of
the Defendant.
Sec. 5. Persons who may hereafter become bound in a Bail Bond
as aforesaid may surrender the Defendant or Defendants in the same
manner as by law the special Bail heretofore had a right to do. If
the Bail wishes to surrender the Defendant before the return of the
writ he may apply to the sheriff for a Bail piece who is hereby au-
thorised and required to grant the same upon the application of
the Bail or his agent and after the return of the writ it shall be the
duty of the clerk of the court into which the writ is return 'd to grant
a Bail piece upon the application of the Bail or his agent whenever
applied for, which Bail Piece so as aforesaid granted, whether by the
sheriff or clerk, shall be a sufficient authority to the Bail to arrest the
Defendant and surrender him in Custody in discharge of his
recognizance.
Sec. 6. It shall be the duty of the Defendant or Defendants to
file his or their plea on or before the end of the third clay of the Term
to which the writ is returnable and if any part of the pleadings are
adjudged bad, immaterial or insufficient the party shall be required
to plead to the merits instanter — If the Defendant fails to file his plea
as aforesaid the plaintiff may on the fourth or any subsequent day of
that Term or any other Term sign Judgment on the records of the
Court for want of a plea and take out a writ of Enquiry to the next
succeeding Term, in all cases where the Damages claimed are un-
liquidated— But in all eases where the Demand is liquidated and
reduced to writing for the payment of money, the court shall at the
first term upon a Judgment by Default calculate the Interest and
laws of 1813 97
confirm the Judgment for the principal and interest really due and
execution may issue thereon as on other Judgments.
Sec. 7. Either party may if he pleases order the cause to be
continued to the second Term — and if the plaintiff does not file his
replication at the first term he shall be at liberty to serve the Defen-
dant or Defendants with a copy of his replication fifteen days before
the next term — But if the plaintiff fails to do so his suit shall be
dismissed at the second Term and Judgment shall be rendered against
him for costs — If the Plaintiff files his replication at the first term
or serves the Defendant with a copy of it fifteen days before the
second Term both parties shall proceed to trial at the second Term
unless good cause is shewn for a continuance or the parties agree to
a continuance.
Sec. 8. Whenever any suit shall be brought in any court of this
Territory founded on any writing signed by the Defendant or having
his name thereto signed whether the same be under seal or not the
Defendant shall not be permitted to deny the execution thereof un-
less he does it on oath accompanying his plea — And if the Defendant
fails to deny it on oath in Manner aforesaid the said instrument of
writing shall be received by the court and given in evidence and be
competent to prove the Debt or duty for which it may appear to
have been given — -And the Defendant shall be entitled to have oyer
of all instruments of writing whether under seal of not upon which
the plaintiff declares in his declaration.
Sec. 9. "When a Judgment is arrested the plaintiff shall not be
obliged to bring a new suit, provided the first declaration and writ
be sufficient, but the court may order new pleadings to commence
where the error causing the arrest began — And when a Judgment is
arrested the party committing the error shall pay the costs occasioned
thereby.
Sec. 10. No Court of Common Pleas shall have original Juris-
diction of any suit cognizable by a Justice of the Peace in this Terri-
tory—
Sec. 11. No plaintiff shall suffer a nonsuit after the Jury have
retired from the Bar to make up their Verdict.
Geo Fisher
Speaker of the House of Representatives
* n -r^ » -in-io Pierre Menard
Approved Dec 9. 1813 . , „ „, „
- ,T „ president or The Council
Ninian Edwards
y» ILLINOIS HISTORICAL COLLECTIONS
An Act Regulating the General Court.
Sec. 1. Be it enacted by the Legislative Council and House of
Representatives of the Illinois Territory and it is hereby enacted by
the authority of the same. That there shall be holden and kept at the
seat of Government of this Territory a supreme court of Record to
be called and styled the "General Court." The sittings of which
Court shall be held at Kaskaskia in the County of Randolph on the
first mondays in April and September, yearly and every year, and
the Judges of the said Court and every of them shall have power and
authority as often as there may be occasion to issue forth writs of
Habeas Corpus, Certiorari and writs of error, and all remedial, and
other writs, and process returnable to the said Court and grantable
by said Judges by virtue of their office.
Sec. 2. Be it further enacted that the said Court shall hear and
determine all causes matters and things cognizable in the said Court
and also to hear and determine all, and all manner of pleas Plaints
& Causes which shall be removed or brought there, from the respect-
ive courts of Common Pleas or from any other court to be holden for
the respective Counties, and to examine and correct all &, all manner
of errors of the Judges of the inferior Courts in their Judgments,
process, and Proceedings in the said Courts as well as Pleas of the
United States as in all pleas, real, personal and mixed and thereupon
to reverse or affirm the same Judgments as the law shall or doth
direct, and also to examine, correct and Punish, the contempts, omis-
sions and neglects, favours, corruptions and defaults of all or any of
the Justices of the peace, sheriffs, coroners, clerks, and other officers
within the respective counties.
Sec. 3. Be it further enacted. That the said General Court shall
have power to award, Process, as well for levying such fines, for-
feitures and amercements as shall be estreated into the said General
Court as of the forfeitures and amercements which shall be taxed and
set there and not Paid to the uses they are or shall be appropriated,
and generally shall minister ample Justice to all persons, and amply
exercise the Jurisdictions and Powers herein mentioned concerning
all and singular the premises according to law.
Sec. 4. Be it further enacted, That all writs issuing from the
said Court shall run in the name of the United States of America
and bear teste in the name of the Clerk of the General Court on the
days on which the said writs shall be issued, and shall be sealed with
laws of 1813 99
the Judicial seal of the said Court and made returnable according
to law.
Sec. 5. Be it further enacted, That the said Court shall have
power from time to time to deliver the Jails of all persons who now
are or shall hereafter be committed for Treasons, murders, or such
other crimes as by the laws of the Territory now are or shall hereafter
be made capital or felonies of death as aforesaid and for that end
from time to time to issue forth such necessary precepts and process
and force obedience thereto as Justices of Oyer and Terminer, and
of Jail delivery maj^ or can do within the United States.
Sec. 6. Be it further enacted That so much of the sixth section
of an act entitled "An act regulating the General Court, passed by
the General assembly of the Indiana Territory on the seventeenth day
of September 1807 as authorises and empowers the Governor of the
Territory to issue a commission for holding a special Court of Oyer
& Terminer in any county directed to the Judges of the General Court
or any one of them, shall be and the same is hereby repealed.
Sec. 7. Be it further enacted, that whenever any person shall be
in the custody of the sheriff of any County charged with any offence
exclusively cognizable by the General Court. It shall be the duty of
such sheriff to give information thereof in writing to any of the
Judges of the General Court, who shall thereupon issue a precept
under his hand and seal to the sheriff of such County, commanding
him to summon twenty-three Grand Jurors and thirty six pettit
Jurors to attend at the seat of Justice of the said County on a day
therein mentioned which shall not be less than thirty nor more than
sixty days from the date of such precepts.
Sec. 8. Be it further enacted, That it shall be the duty of such
sheriff on receiving the precept aforesaid to give notice by advertise-
ment set up at the seat of Justice of the said County at least twenty
days before the return of such Precept of the time and place of hold-
ing a special session of the General Court in pursuance of this act
and the Judge issuing his precept as aforesaid shall personally or in
writing notify the other Judges of the said court, the clerk of the
said court and the attorney General of the time and place of holding
a General Court in persuance of this act. But the want of such ad-
vertisement by the sheriff or of such notice by the Judge shall not be
construed to invalidate the authority of the Court or to render its
proceedings erroneous but in case of such omission, the precept afore-
100 ILLINOIS HISTORICAL COLLECTIONS
said shall be considered legal notice of the time and place of holding
a General Court by virtue of this act and the sheriff for omitting to
advertise in manner aforesaid may be fined by the Court in a sum not
exceeding five hundred Dollars and not less than one hundred Dollars.
Sec. 9. The said Court when met in pursuance of this act shall
have authority to adjourn to any day which may be adjudged reason-
able and expedient for the fair and impartial trial of any person who
may be Indicted before the same Court.
Sec. 10. Be it further enacted, That in case the requisite num-
ber of grand or Pettit Jurors should not attend at the time and place
mentioned in such precept or the number of Pettit Jurors be reduced
by challanges below twelve, the Court may order the sheriff to com-
plete the panel of the grand Jury or pettit Jury from the Bystanders
or award a Venire for a grand or pettit Jury as the case may require.
Sec. 11. Be it further enacted, That in order to compel the due
attendance of Jurymen in the said General Court and all other
Courts in this Territory it is hereby enacted and declared that if any
person shall be duly summoned to attend any Court of Judicature to
serve on a Jury or any inquest required by law and shall neglect or
refuse to give his attendance on the day and during the time his
service is necessary, for every such person so offending shall be fined
for every such offence in the Genl. Court by the said Court in any
sum not exceeding eight dollars, and for every such offence in any
Court of Common Pleas of any County in the Territory by the said
Court any sum not exceeding five dollars, unless the delinquent shall
at the same or next succeeding term render to the said Courts respect-
ively a reasonable excuse for such neglect or refusal it shall be the
duty of the said General Court & courts of common pleas, and they
are hereby empowered and required on failure of such delinquent to
render such reasonable excuse, to issue a writ to the sheriff of the
county to levy the said fines on the the Goods and chattels of every such
delinquent to be paid to the clerk of the General Court and clerks of
the courts of common pleas. But where any delinquency in the
attendance of Jurors summoned to attend any special Session of the
General Court may happen and the delinquent fails to make his excuse
at the term to which he may have been summoned it shall and may
be lawful for him to make his excuse to the said court at their next
stated Term, in writing which shall be sworn to and subscribed
before some Judge of the court of Common Pleas or Justice of the
LAWS OF 1813 101
peace in the Territory and in all cases where the excuse shall be
deemed insufficient by the court they are hereby authorised to issue
process directed to the sheriff of the county in which the delinquency
may have happened commanding him to levy the fine on the goods
and chattels of every such delinquent —
Sec. 12. Be it further enacted, That all fines amercements and
forfeitures which shall be inflicted by the said General Court under
any of the Laws of this Territory, shall be paid to the clerk of the
said court, and by him annually on or before the first day of October
paid into the Territorial Treasury for the use of the Territory, That
all amercements, fines, & forfeitures inflicted by the said court at any
special session held by the said court in any county shall be paid to
the sheriff of the county where the same shall be inflicted and by the
said sheriff accounted for annually and by him paid into the County
Treasury for the use of the county — That the expences of any prose-
cution or Prosecutions before the said court at any special Session
as aforesaid where the defendant or defendants shall be acquitted or
discharged, or unable to pay the fees such fees shall be paid by the
county in which such prosecution shall be instituted.
Sec. 13. Be it further enacted, That it shall be the duty of the
sheriff of Randolph County to attend and execute the process and
orders of the General Court within his county and it shall be the duty
of each and every sheriff in this Territory to attend and execute the
orders and Process of the said court at any special Session thereof
which shall and may be held in his county. And it shall be the duty
of the sheriff of Randolph County at least five days previous to the
commencement of each stated term of the General Court to summon
thirty six House Keepers to attend the said court as Pet tit Jurors.
No grand Jury shall be hereafter summoned to attend the General
Court at their stated terms to be holden at Kaskaskia unless the at-
torney of the United States for the Territory shall convince the said
court, or some Judge thereof in vacation that it is necessary to have
a grand Jury summoned to present offences that may have been
committed against the Laws of the United States, which court or
Judge is hereby authorised to issue a precept directed to the Marshal
of the Territory, commanding him to summon twenty three house
holders to appear at the said court as a grand Jury. From and after
the passage of this act the grand Juries sworn before the courts of
common pleas in the several Counties shall be charged to enquire as
102 ILLINOIS HISTORICAL COLLECTIONS
well of all offences cognizable by the General Court which may be
committed in their respective Counties, as of offences cognizable and
triable by the courts of common pleas — And when any such grand
Jury shall make a presentment of any offence, or find an indictment
only cognizable b}r the General Court, the said courts of common
pleas in their respective counties shall have power, and hereby
are required to issue proses to apprehend the offender, and, when the
offender shall be in custody, the sheriff of the proper county shall
forthwith give notice thereof to one of the Judges of the General
Court.
Sec. 14. Be it further enacted, That the said General Court shall
not take original Jurisdiction at Common law of any sum under five
hundred Dollars, and if any person shall hereafter commence a suit
in the General Court and shall not recover a sum amounting to, or
exceeding five hundred Dollars such person shall be amerced in the
costs of such suit.
Sec. 15. Be it further enacted, That the senior or presiding
Judge of the General Court, shall collect and he is hereby enjoined
to collect make up and deliver in writing a plain but full statement of
the case on all points or questions of law with the opinion of the
court thereon, which opinion shall be by the said Judge delivered to
the clerk and by him recorded at full length upon the Records of the
said court and should either of the said Judges differ in opinion the
dissenting Judge shall have the reasons of his dissent entered of
Record in said suit.
Sec. 16. Be it further enacted. That there shall not hereafter
be any writ of Certiorari appeal, or writ of error or any proceeding
in the nature of either to the General Court from any court in this
Territory upon any matter of fact, but in future the General Court
shall take cognizance of errors in law only but writ of error or appeal
neither of which shall issue in any case whatever until after final
Judgment in the court of common pleas on an appeal from the Judg-
ment of a Justice of the peace but that all appeals from the Judg-
ments of Justices of the peace shall be final in the courts of Common
Pleas.
Sec. 17. Be it further enacted. That the Judges of the General
Court, shall be and they are hereby authorised to exercise the powers
and authority usually exercised by a court of chancery.
Sec. 18. Be it further enacted. That in all suits in chancerv
LAWS OF 1813 103
in the said General Court the rules and methods which regulate the
high court of chancery in England, shall as far as the said General
Court may deem the same applicable, be observed except as hereinafter
mentioned.
Sec. 19. Be it further enacted, that if the said General Court
shall not set or be opened on or before the end of the three first days
of the Term the court shall not afterwards be opened at that Term
but stand adjourned until court in course, and all writs and process
then returnable, and bills, suits, pleadings and proceedings before
the said court shall be continued of course until the next term, and
from term, to term until the court shall set.
Sec. 20. Be it further enacted, that the said court in term or
any Judge in vacation shall be authorised to grant writs of ne exeat
Injunction, Certiorari or other process usually granted by a court
of Equity.
Sec. 21. Be it further enacted, that if the complainant in chan-
cery resides out of the Territory, he shall before issuing of process to
appear cause a Bond to be executed by at least one sufficient person
being a free holder and resident of the Territory, to the defendant
in the penal sum of two hundred Dollars, conditioned to prosecute
the suit with effect & to pay costs if the defendant should be entitled
thereunto and to have the same filed with the clerk in default whereof
the said complainant's Bill shall be dismissed with costs.
Sec. 22. Be it further enacted That any complainant in chan-
cery residing within the Territory shall at the discretion of the court
give security in the manner and form as is required in case of non
residents.
Sec. 23. Be it further enacted. That any subpoena process of
sequestration writ of execution or other writ or process in chancery
shall be issued by the clerk at the instance of the party applying for
same.
Sec. 24. Be it further enacted that in all cases in chancery the
rules to plead, answer, reply, rejoin, or other proceedings when neces-
sary shall be given in open court and be entered in a Book to be
kept for that purpose for the information of all parties, attorneys, or
consellors therein concerned.
Sec. 25. Be it further enacted, That no subpoena in chancery
shall issue until the Bill be filed with the clerk, whose duty it shall be
to copy the same and to deliver a copy to the person applying for
104 ILLINOIS HISTORICAL COLLECTIONS
the subpoena ; which copy shall be delivered to the Defendant if
within the Territory, by the officer or person serving the subpoena ;
which service and delivery shall be endorsed on the back thereof and
if there be more than one Defendant, the said copy shall be delivered
to the one first named in the subpoena if he be resident within this
Territory if not, the next one named in the subpoena that is a resident.
Sec. 26. Be it further enacted. That if any defendant in chan-
cery if but one or defendants if more than one reside out of the
Territory or cannot be found to be served with process of subpoena,
or abscond to avoid being served therewith, public notice shall be
given to the defendant, or defendants signed by the clerk in any
Newspaper printed in this, or any adjoining state or Territory, as the
court shall direct, that unless he, she, or they appear and file his,
her, or their answer by a day given him or them by the court, the
Bill shall be taken pro confesso. And when a Bill is amended,
a copy of the amendatory Bill shall in like manner be delivered to the
defendant or defendants.
Sec. 27. Be it further enacted, That in suits in chancery, the
complainant may take depositions in one month after filing his Bill
provided he first obtain a Dedimus for that purpose, before any
Judge or Justice of the peace, & the defendant may do the like as
soon as he has filed his answer, Provided that reasonable notice be
given of the time and place of taking such Deposition, which reason-
able notice shall in all cases be ten days and over the ten days, one
day for every twenty miles travel from the place of holding court
to where the witness or witnesses are to be sworn and examined.
Sec. 28. Be it further enacted, That if the Defendant in chancery
does not file his answer in the time prescribed by the rules of the
court having also been served with process of subpoena, writh a copy
of the Bill, or notice as required by this act, the complainant shall
proceed on to hearing as if the answer had been filed and the cause
at issue. Provided however that the court for good cause shewn may
allow the answer to be filed and grant a further day for such hearing.
Sec. 29. Be it further enacted that any defendant in chancery
may swear to his answer before any Judge of this court, or any
Judge of a court of common pleas or Justice of the peace, and if
the Defendant resides out of the Territory, he may swear to his
answer before any Justice of the peace, of a county, city, or Town
Corporate, the common seal of any court of Record of such
LAWS OF 1813 105
county, city or Town Corporate, being- thereto annexed.
Sec. 30. Be it further enacted. That the complainant in chan-
cery having obtained a decree, and the defendant not having com-
plied therewith by the time appointed, it shall be lawful for the said
court to issue a writ of fieri facias against the goods and chattels,
lands and tenements and hereditaments of the Defendant upon
which sufficient property shall be taken and sold to satisfy the said
demand with costs or to issue a capias ad satisfaciendum against the
Defendant. Upon Writs of fieri facias and capias ad satisfaciendum
there shall be the same proceedings as at law, or cause by Injunction
the possession of effects and Estate demanded by the Bill, and
whereof the possession or sale is decreed to be delivered to the com-
plainant, or otherwise according to such decree, and as the nature
of the case may require.
Sec. 31. Be it further enacted. That when a decree in chancery
shall be made for a conveyance, release, or acquittance, and the party
against whom the decree shall pass shall not comply therewith by
the time appointed then such decree shall be taken and considered in
all courts of Law and Equity to have the same operation and effect,
& be as available as if the conveyance release, or acquittance had been
executed conformably to such order.
Sec. 32. Be it further enacted, 'That a decree in chancery shall
from the time of its being signed, have the force, operation, and effect
of a Judgment at law from the time of the actual entry of such decree
and a writ of fieri facias issued on any decree in chancery shall bind
the goods of the person against whom it is issued from the time
it was delivered to the sheriff or officer to be executed as at law.
Sec. 33. Be it further enacted, That there shall be appointed
and commissioned by the Governor a clerk to the said court who shall
enter into bond to the Governor with security to be approved by the
Governor in the penalty of one thousand dollars conditioned for the
performance of such duties as are or may hereafter be required of
him by law which bond shall be filed in the office of the Secretary of
the Territory, which said clerk shall be entitled to same fees and
salary as by law are now or which may be hereafter allowed him, and
shall perform such duties as are by law required of him.
Sec. 34. Be it further enacted, That no Injunction in chancery
shall be granted to stay proceedings at Law unless the party praying
the Injunction have at least proved that the opposite party (if living
106 ILLINOIS HISTORICAL COLLECTIONS
in the Territory if not his agent or attorney of Record) had at least
ten and not more than fifteen days notice of the time and place of
applying for such Injunction, from the time of which notice given all
proceedings shall be stayed until the court or Judges decision shall be
made, whether an Injunction shall, or shall not be granted, but if
the complainant shall not make application for such Injunction on
the day specified in such notice, then the plaintiff at Law may proceed
as if none had been given nor shall any Injunction be granted to stay
any Judgment at Law, for a greater sum than that the complainant
shall shew himself equitably not bound to pay and so much as shall
be sufficient to cover the costs and every Injunction when granted
shall operate as a release to all errors in the proceedings at law that
are prayed to be enjoined, nor shall any Injunction be granted, unless
the complainant shall have previously executed a Bond to the defen-
dant with sufficient security to be approved of by the court or Judge
granting the Injunction in double the sum prayed to be enjoined
conditioned for the payment of all monies and costs due or to be due to
the plaintiff in the action at Law, and also all such costs and Damages,
as shall be awarded against him or her, in case the Injunction shall
be dissolved. If the Injunction shall be dissolved in whole or in
part, the complainant shall pay six per cent exclusive of legal interest
beside costs, and the clerk shall issue an execution for the same when
he issues an execution upon said Judgment. On the dissolution of an
injunction Judgment shall be given by the court against the sureities
as well as the complainant in the Injunction Bond.
Sec. 35. Be it further enacted that whenever affidavits are
taken either to support or dissolve an Injunction, the party taking the
same shall give the adverse party reasonable notice of the time and
place of taking the same and the clerk shall issue to either of the
parties subpoenas to procure the attendance of witnesses at the time
and place appointed — And such affidavits taken as aforesaid may be
read on the final hearing of the cause in which they may be taken,
under the same restrictions as depositions taken according to law.
Sec. 36. Be it further enacted, That no notice shall be neces-
sary in any case where application is made for an Injunction in Term
time, (where the Judgment was rendered in the General Court, but
if the Judgment be rendered in any other court, notice shall be required
of an application in Term time for an Injunction, unless as is here-
inafter provided) nor in vacation where the title or Bonds for lands
LAWS OF 1813 107
shall come in question, and that no Injunction to stay proceedings
at Law shall be granted after sixty days next succeeding* the end of
the Term at which the Judgment sought to be enjoined was rendered.
Sec. 37. Be it further enacted, that writs of Ne Exeat shall not
be granted but upon Bill filed, and affidavit to the allegations, which
being produced to the court in term time or the Judge in vacation,
he or they may grant or refuse such Writ as to him or them shall seem
meet, and if granted, he or they shall endorse thereon in what penalty,
Bond, & security shall be required of the defendant. And that no
writ of ne exeat shall issue until the complainant shall give Bond
and security in the clerks office to be approved by the Judge or court,
and in such penalty as he or they shall adjudge necessary to be en-
dorsed on the Bill And in case any person stayed by such writ of
Ne Exeat shall think himself or themselves aggrieved, he or they may
Bring suit on such Bond, and if on trial it shall appear that the writ
of Ne Exeat was prayed without a Just cause the person injured shall
recover damages.
Sec. 38. Be it further enacted, That if the defendant or defen-
dants in chancery shall go out of the Territory, but shall return before
a personal appearance be necessary to perform any order or decree
of the court such his or her temporary departure, shall not be consid-
ered as a breach of the condition of the Bond. And whenever the
defendant to a Bill in chancery, shall give security that he will not
depart the Territory, the security shall have leave at any time before
the Bond shall be forfeited, to secure his principle in the same manner
that special Bail may surrender their principal and obtain the same
discharge.
Sec. 39. Be it further enacted. That the said General Court
shall have cognizance of all cases in equity amounting to or exceeding
one hundred Dollars. But if any Bill in chancery shall be brought
touching any matter or thing, real, or personal, which shall not be of
the value of one hundred Dollars the same shall be dismissed with
costs.
Sec. 40. Be it further enacted, That all suits process and pro-
ceedings whatsoever now depending before the General Court at Kas-
kaskia shall be returned to and proceeded on at the terms of the said
General Court directed to be holden under this act, and shall be prose-
cuted on to final Judgment and execution in all things as fully as the
same might or could have been done had this act not have been passed.
108 ILLINOIS HISTORICAL COLLECTIONS
Sec. 41. Be it further enacted, That all suits, process and pro-
ceedings whatsoever now pending in the General Court at Cahokia
shall be proceeded on, and the court be held at Cahokia aforesaid in
the same manner as is now provided by law and as if this act had not
passed until the first day of November next, after which time, the
papers, Books, and proceedings then being at Cahokia in the General
Court, shall be removed to Kaskaskia and be proceeded on as above
provided for the Business pending before the said court at Kaskaskia.
All laws and parts of laws coming within the purview of this act,
shall be and the same are hereby repealed. This act to commence and
be in force from and after the passage thereof.
Geo Fisher
Speaker of the House of Representatives
Pierre Menard
president of The Council
Approved Dec 10. 1813
Ninian Edwards
An Act to fix the places of holding Court in the counties of Madison
St Clair and Johnson.
Sec. 1. Be it enacted by the Legislative Council and house of
Representatives of the Illinois Territory and it is hereby enacted by
the authority of the same That the courts in the counties of Madison
& St Clair shall be holden at the following places in the said counties
(until the Judges of the respective courts of common pleas in those
counties shall provide proper accommodations at the places to be fixed
upon by the commissioners in the respective Counties as is hereinafter
provided) viz. In County of Madison at the House of Thomas
Kirkpatrick and in the county of St Clair at the court house in
Cahokia.
Sec. 2. Be it further enacted that for the purpose of fixing the
permanent seats of Justice in the counties of Madison and St Clair
the following persons are hereby appointed commissioners in the said
counties, viz. in the county of Madison, Paul Beck, Doct. Cadwell,
Alexander Waddle George Moore, James Rentfrow, John Kirkpatrick,
and Ephraim Wood In the County of St Clair, Doct. Carnes, John
Hays, Isaac Enoch, Nathan Chambers, William Scott Jun. Jacob
Short, and James Lemon Sen. which said commissioners or a Majority
of them shall meet at such times and places as may be directed by the
LAWS OF 1813 109
courts of Common Pleas for the said counties respectively provided
that the time of meeting shall not be extended beyond the first monday
in April next and if the commissioners or a Majority of them shall
fail to meet at the time and place above specified it shall and may be
the duty of said Judges in vacation or at any other term or terms to
notify said commissioners until they shall designate the county seat
and make their returns to the next court after they have determined
upon the particular place which said commissioners shall before some
Judge or Justice of the peace take the following oath, (viz.) I. AB.
do solemnly swear or affirm as the case may be that in fixing on the
place to erect public building for County I will well and
truly perform the duties imposed on me by an act of the General
Assembly entitled "an act to fix the places of holding courts in the
several Counties of Madison and St Clair to the best of my knowl-
edge and abilities and in fixing on the said place as required by law
I will exercise the powers in me vested without partiality, fear, fav-
our, or affection, so help me god. which said commissioners on being
thus sworn shall forthwith proceed to examine for, and designate the
places for the counties of St Clair, Madison & Johnson as near the
centre as may be convenient to the present population thereof for
erecting the public Building for their respective counties at such time
and place as may be appointed by their courts of Common Pleas
respectively taking into view the situation of the settlements, the
Geography of the country, the convenience of the people, and eligibil-
ity of the place, which place so fixed & determined on, the commis-
sioners shall certify under their hands and seal and return the same
to the next court of common pleas in their counties which said court
shall cause an entry thereof to be made on their records, and it shall
be the duty of the court of common pleas in the said counties as
soon as practicable after the place so designated, shall be fixed upon
to cause suitable buildings to be provided thereat and to cause a
purchase of such quantity of land to be made for the use of the county
and to erect a court house and Jail and to make such other improve-
ments thereon as they may deem expedient from time to time.
Sec. 3. Be it further enacted that in order to carry this act into
as early an operation as possible, the members of the Council and
house of Representatives from each county, shall carry one copy of
this act with them when they return to their respective Counties for
the information of the courts of common pleas and all persons con-
cerned. And that the said commissioners be allowed the sum of one
110 ILLINOIS HISTORICAL COLLECTIONS
dollar per day for their Services to be paid by the county and out
of the county levy and if the said commissioners shall fail to attend
when notified by the court of common pleas they shall forfeit and
pay a sum not exceeding five Dollars nor less than two Dollars as
their courts of common pleas shall think proper.
Sec. 4. Be it further enacted that the following persons are
hereby appointed commissioners for the county of Johnson (viz.)
James Whitesides, Jonas Hibbs & Joseph Palmer, Owen Evans John
B. Murry — shall be the commissioners for Johnson County, who shall
convene or a majority of them on the first day of January next and
who in all other respects shall conform their proceedings herein to an
act entitled "an act to fix the places of holding courts in the several
counties." passed by the General Assembly of this Territory on the
25. th day of December last. But should a majority of said com-
missioners fail to convene on the day aforesaid, it shall be their duty to
convene at any day of said month thereafter and proceed to the com-
pletion of the duties aforesaid provided the whole of the Business be
finished on or before the twenty fifth day of April next
This act to commence and be in force from and after the passage
thereof
Geo Fisher
Speaker of the House of Kepresentatives
Pierre Menard
president of The Council
Approved Dec 10. 1813
Ninian Edwards
An Act supplimental to an act entitled "an act authorising the Grant-
ing of Letters Testamentary and letters of administration, for the
Settlements of Intestates estates and for other purposes.
Whereas it appears that there is no law provided to authorise
the Judges of the courts of Common pleas to issue any compulsory
process against Executors or Administrators in vacation of the courts
sitting, and a considerable length of time between terms — which some-
times subjects Estates to considerable loss. For remedy whereof.
Sec. 1. Be it enacted by the Legislative Council and House of
Representatives, of the Illinois Territory and it is hereby enacted by
the authority of the same That on complaint made to any Judge of
the court of Common pleas between term times of said court, that any
LAWS OP 1813 111
Estate is likely to be embezzled or wasted in airy manner whatever,
by any executor or Administrator, Guardian or others — The said
Judge is hereby empowered and authorised to issue such necessary
process, against any such Executor or administrator in the same
manner as might or could be done if sitting in a regular Session at
the times prescribed b}r law, and on hearing such case if the
said Judge should be of opinion that such complaint is well founded,
he is hereby authorised to summon one other Judge to his assistance
and hold a special session in which they are hereby empowered to hear,
and finally do all such matters and things thereon as might or could
be done at any regular Session of said court of common pleas at their
terms appointed by the act to which this a suppliment
Sec. 2. Be it further enacted, that the debts due by any person
or persons at the time of his or her decease by any instrument in
Writing with or without seal shall be considered and taken as debts of
equal degree and by his or her executors or administrators accord-
ingly paid as such out of the decedent's Estate and all executors and
administrators, after receiving the letters of administration, shall in
ninety days thereafter make return of the appraisement, and sale of
such Estate as he or they, may administer upon to the clerk of the
court of common pleas and at the end of nine months thereafter, they
shall render to the court, their whole proceedings had thereon, or so
far, as to make known to the court, whether the estate is sufficient or
insolvent that he administered, or the next term after the expiration
of the said nine months — And if any executor or administrator, shall
pay to any creditor of said Estate any more than his proportionable
part or share of said Estate the said Executor or administrator shall
be liable out of his own estate, to pay the creditors of said deceased the
amount, thus improperly paid. Tho' the Executor or administrator
might not have known of the insolvency of said estate, nor shall he at
his peril knowingly pay to any creditor more than his proportionable
part or share of said estate after the expiration of one year next suc-
ceeding the date of his letters of administration or Testamentary, no
executor or administrator, shall confess a Judgment to any creditor
of said estate unless upon Oath so as to entitle the party to whom he
confesses Judgment to any more than his Just proportion of said
estate, nor that no executor nor administrator shall be entitled to
retain of said Estate for his own debt any more than a Just propor-
tion, with the other creditors.
112 ILLINOIS HISTORICAL COLLECTIONS
Sec. 3. And be it further enacted. That where the estate of which
anyone may be executor or administrator shall amount to no more
than two hundred Dollars, it shall be his duty to set up five advertise-
ments in the most public places in the county in which the said de-
ceased died notifying' the creditors of said estate, that at the next
court of common pleas, he will settle with the court and require the
creditors to bring in their claims properly authenticated, but should
the estate amount to more than two hundred Dollars the executor
or administrator shall insert the notice of such intended Settlement
in some public newspaper for eight successive weeks, & set up adver-
tisements for the purpose aforesaid.
Sec. 4. Be it further enacted that where the estate of any
deceased person does not amount to any more than two hundred dol-
lars. The Executor or administrator who administers on said Estate
shall not be entitled to any more fees than ten per cent for his trouble
and all above two hundred dollars five per cent. And where the estate
amounts to no more than five hundred Dollars the administrator shall
not be entitled to any more fees than Seven per cent for his trouble
as administrator of said Estate — And all above five hundred Dollars
to one thousand Dollars three per cent — And when any estate does
not amount to any more than one thousand dollars the administrator
shall not be entitled to any more fees for his trouble than five per cent,
and all above one thousand to two thousand dollars three per cent —
And where any estate does not amount to any more than two thou-
sand dollars the administrator shall not be entitled to any more fees
for his trouble than four percent, and all sums above two thousand
Dollars two and a half per cent. And in any case where the Judges
of the courts of common pleas should be of opinion that the per cent
allowed by this law for the trouble of settling estates should be too
much, the said Judges may make any reasonable deduction as they
may think Just and reasonable And where estates have become in-
solvent it is always to be understood that all funeral expences shall be
first paid. That nothing in this act contained shall be so construed so
as in anywise to affect any administration granted before the passage
of this act. This act to be in force from the passage thereof.
Geo Fisher
Speaker of the House of Representatives
a i t^ m 1010 Pierre Menard
Approved Dec 10. 1813 ... „,,,-,
,T _ president ot the Council
Ninian Edwards
LAWS OF 1813 , 113
An Act Repealing part of an act Regulating the fees of the Several
officers and persons thei'e in named.
Be it enacted by Legislative Council and house of Representa-
tives of the Illinlois Territory and it is hereby enacted by the authority
of the same, That so much of the act regulating the fees of the several
officers and persons therein named, passed by the General assembly
of the Indiana Territory on the seventeenth day of September 1807,
as relates to the attorney prosecuting the pleas of the United States
and allowing the prosecuting attorney five Dollars for every indict-
ment or information for the whole prosecution shall be and the same
is hereby repealed. This act to be in force from the passage thereof.
Geo Fisher
Speaker of the House of Representatives
Pierre Menard
president of The Council
Approved Dec 10. 1813
Ninian Edwards
An Act for the relief of the Sheriff of Randolph County
Whereas it is represented by the Sheriff of Randolph County
that some misunderstanding, owing to miscarriage of letters to and
from his deputy in Galletin County had occasioned a delinquency on
his part in the collection of the county tax for the year 1812 in said
County for remedy whereof, Be it enacted by the Legislative Council
and house of Representatives of the Illinois Territory and it is hereby
enacted by the authority of the same. That the said Sheriff shall be
and he is hereby, allowed a further time of Five months to make and
complete the collection of the aforesaid county tax for the year 1812
in the same manner as directed by the act entitled "An act for the
relief of the sheriffs of Randolph and St Clair Counties" and as if the
division of Randolph County had not taken place. This act to be in
force from the passage thereof.
Geo Fisher
Speaker of the House of Representatives
Pierre Menard
president of The Council
Approved Dec. 10. 1813
Ninian Edwards
114 ILLINOIS HISTORICAL COLLECTIONS
An Act for levying and collecting an additional Revenue and to
amend the the act for levying and collecting a Tax on land.
Sec. 1. Be it enacted by the Legislative Council &. House of Rep-
resentatives of the Illinois Territory and it is hereby enacted by the
authority of the same That there shall be annually levied and collected
from each free male inhabitant above the age of twenty one years in
this Territory who does not pay an annual Land tax to the Territory
a tax of fifty cents each which shall be collected and paid into the
Territorial Treasury in the manner hereinafter directed.
Sec. 2. Be it further enacted. That it shall be the duty of the
county Commissioner in each county in this Territory annually at the
time he is required by law to take in a list of county levies to take in
also a list of all free male inhabitants in his county who does not pay
a land tax to the Territory which List he shall return to the clerk of
the court of common pleas of his county at the same time he is re-
quired by law to return a list of land and for which service the said
commissioners shall be allowed the sum of two Dollars per day to be
paid out of the Territorial Treasury on his producing to the auditor
a certificate from the court of common pleas of his county that he has
performed the duty required of him under this act. But no such
commissioner shall charge the county and Territory for the same days
service.
Sec. 3. Be it further enacted. That it shall be the duty of the
clerk of the court of common pleas in each county to make one
copy of the commissioners List which he shall deliver to the sheriff
of his county at the same time which he is required by law to deliver a
list of lands for taxation and shall in like manner return the Original
List to the auditors office at the time he returns a list of lands, for
which service the Clerk shall be entitled to receive from the Terri-
torial Treasury on the warrant of the auditor the sum of five Dollars.
Sec. 4. Be it further enacted, that it shall be the duty of the
Sheriff in each county on receiving the list as aforesaid, to demand
and collect from each person named in the list the Tax aforesaid, and
should any person after the tax aforesaid shall be demanded from him
fail or refuse to pay the same it shall and may be lawfull for the sheriff
to proceed and seize such delinquents property and sell the same in
the manner he is required by law with respect to county levies
Sec. 5. Be it further enacted that the sheriff of each County shall
complete his collection of taxes under this act and account for the same
LAWS OF 1813 115
and pay the amount collected into the Territorial Treasury on or
before the first day of November annually and shall be credited by the
auditor for all delinquinces which he shall return a list of on oath
and for collecting* and accounting for the tax aforesaid the sheriff
shall be allowed by the auditor the sum of seven and one half percent
on the amount collected and in case any sheriff, clerk, or commissioner
shall fail in performing the duties required by this act they shall be
proceeded against in the same manner and shall incur the same penal-
ties as are provided by law for collection of tax on land
Sec. 6. Be it further enacted That whenever hereafter the sheriff
of any county in this Territory shall receive a certified list of lands
for taxation from the clerk of the court of common pleas of his county
pursuant to the directions of the act to which this is an amendment
the sheriff shall have until the first day of July following to demand
of the several persons charged with taxes in such List, the amount
due from him, her, or them, respectively any thing in the said act to
the contrary notwithstanding
Sec. 7. Be it further enacted that until there shall be a public
Newspaper printed in this Territory the sheriff of any county may
publish any notice required by law to be given in a public Newspaper
of the sale of any delinquents lands for the taxes and costs in any
newspaper printed in any adjoining state or Territory any thing in
the said act to the contrary notwithstanding.
Sec. 8. Be it further enacted. That in all cases in which the tax
upon land imposed by the law of last session of the Legislature has
not been collected all sheriffs authorised to collect the same shall pro-
ceed hereafter to advertise and collect the same in the same manner
as such sheriff or sheriffs might or could have done during the present
year according to the existing law, being hereby authorised to adver-
tise the same according to the provisions of the present law — And
shall make settlement with the auditor of public accounts on or before
the first day of March next.
Sec. 9. Be it further enacted, That where any tract of land shall
be hereafter sold for the taxes and costs, the purchaser or purchasers
shall be charged with the taxes which may be thereafter due on any
such tract or tracts of Land notwithstanding the time of redemption
shall not have expired and in case any such tract of land shall be
redeemed by the former Owner as provided by law after there shall
have been a subsequent tax due thereon, the former owner or owners
116 ILLINOIS HISTORICAL COLLECTIONS
shall at the time of paying to the auditor or clerk the redemption
money also pay the amount of such subsequent tax or taxes before
he or they shall be entitled to a certificate of redemption as provided
in said. act, This act shall commence and be in force from & after the
passage thereof.
Geo Fisher
Speaker of the House of Representatives
Pierre Menard
president of The Council
Approved Dec 11. 1813
Ninian Edwards
An Act to make appropriations for the ensuing year and for
other purposes.
Sec. 1. Be it enacted by the Legislative Council and House of
Representatives of the Illinois Territory. That the sum of one hun-
dred dollars is hereby appropriated to defray contingent expences
for the year 1814, and that all monies which may be received into the
Territorial Treasury during the year 1814 except as above appro-
priated for contingent expences shall be a general fund for all monies
allowed by law. The said sum of one hundred dollars allowed for
contingent expenses shall be subject to the orders of the Governor on
the Auditor for the payment of expenses and allowances which may
be necessary and unforseen and unprovided for by the Legislature.
And for distributing the laws. A statement of which shall be laid
by the Governor and Auditor before the Legislature at its next session
Sec. 2. Be it further enacted. That there shall be paid out of
the Territorial Treasury on the warrant of the Auditor to each mem-
ber of the Legislative Council and House of Representatives the sum
of two dollars and fifty cents per day for each days attendance at the
present session of the Legislature and at the rate of two dollars and
fifty cents for every twenty miles travel to and from the seat of
Government to their places of Residence by the most usual road, to
the Secretary of the Legislative Council and to the Clerk of the House
of Representatives for their services at the present session the sum of
three Dollars & fifty cents per day each, and to enrolling and engross-
ing clerk the sum of three Dollars and fifty cents per day, and to the
Door Keeper of Both Houses the sum of two Dollars per day for every
days attendance at the present session.
LAWS OF 1813 117
Sec. 3. Be it further enacted that the compensation which may
be due to the members & officers of the Legislative Council shall be
certified, by the president thereof, and those that may be due to the
members and officers of the House of Representatives including the
enrolling and engrossing clerk & door keeper shall be certified by the
speaker thereof which certificate shall be sufficient evidence to the
auditor of the claim and he shall thereupon issue to such person so
entitled a warrant or warrants on the Territorial Treasury for the
amount of his certificate which warrants shall bear interest from the
date thereof until paid at the Treasury.
Sec. 4. Be it further enacted that the following shall continue
for one year commencing the first day of January next to be the sala-
ries of certain officers as follows (towit). For the attorney General
one hundred Dollars. For the auditor of public accounts one hundred
& fifty Dollars for the public Treasurer one hundred Dollars. For
the adjutant General. The sum of one hundred Dollars
Sec. 5. Be it further enacted that there shall be allowed and paid
out of the General fund, to the following persons, the following sums
of money, viz To John Hague for certain repairs done to the Court
House of Randolph County for the use of the Legislature at the pres-
ent session fifteen Dollars. To Ira Manville for Hauling a stove for
the use of the Legislature at the present session, two Dollars To
Michael Jones Register of the Land office for the District of Kaskaskia
for making an abstract of confirmed claims to land for the auditor
pursuant to a law of last session of the Legislature one Hundred Dol-
lars To Jean Bte. Chamberlain for fire wood furnish 'ed for the use
of the Legislature at the present session nine Dollars and Seventy five
cents. To Pierre Menard for plank furnished for making repairs for
the court house for the use of the Legislature and for two tin pitchers
for the use of the same ten Dollars forty cents to Wm. Arundel for
stationary furnished for the use of the Legislature at the present ses-
sion ten Dollars twenty five cents, to William Arundel Recorder of
Randolph County, for his trouble in removing the antient records and
papers into the secretary's office and making a list thereof agreeably
to a law of the last session thirty two Dollars. To Benjamin Stephen-
son sheriff of Randolph County one Hundred Dollars, and To John
Hays sheriff of St. Clair County seventy five Dollars, for their ser-
vices in taking in a list or enumeration of the free white male inhabi-
tants in their counties pursuant to the proclamation of the Governor
1 IS ILLINOIS HISTORICAL COLLECTION S
in the year 1812, To William C Greenup clerk of the House of Rep-
resentatives for making a copy of the Laws pass'd at the last session
with marginal notes for the purpose of being printed twenty Dollars,
To John Thomas Territorial Treasurer for Books and Stationary fur-
nished for his office eleven Dollars to Hugh H Maxwell auditor of
Public accounts for a Book & Stationary furnished for the use of his
office six Dollars & fifty cents For printing the laws of this session
one hundred and fifty Dollars
Geo Fisher
Speaker of the House of Representatives
Pierre Menard
president of the Council
Approved Dec 11. 1813
Ninian Edwards
An Act swpplimental to an act entitled "An act Regulating Elections
Be it enacted by the Legislative Council and House of Representa-
tives of the Illinois Territory. That whenever hereafter any person
shall at any General Election be elected a member of the House of
Representatives of the Legislative Council or a Delegate to Congress
The Term of his Service shall commence on the tenth day of October
next ensuing his Election and such persons so elected to the House of
Representatives, to the Legislative Council, and a Delegate to Con-
gress shall continue in office from the said tenth day of October next
ensuing his Election for their respective Terms as fixed hy Law.
Geo Fisher
Speaker of the House of Representatives
Pierre Menard
president of The Councill
Approved Dec 11. 1813
- Ninian Edwards
An Act concerning the Town of Kaskaskia.
Sec. 1. Be it enacted by the Legislative Council and House of
Representatives and it is hereby enacted by the authority of the same.
That an election shall be held at the court House in the Town of
Kaskaskia on the first day of March next for three commissioners in
LAWS OF 1813 119
which every free white male inhabitant of said Town above the age of
twenty one years shall be allowed a vote. The said election shall
be superintended by a Justice of the peace who shall return to the next
succeeding court of common pleas for the County of Randolph the
aggregate amount of votes for three successfull commissioners which
shall be admitted to record. Whereupon the said commissioners shall
be authorised to lay out the streets for the Town of Kaskaskia. Pro-
vided however that no Building or other improvements shall be
affected thereby without the consent of the Owner or Occupier there-
of and provided that they shall be governed as near as may be (with
the above exception) by the existing plan of said Town after which
they shall make a plat of said streets and exhibit thereon the relative
situation of the residents of said town which shall be presented as
soon as may be to the court of common who shall thereupon confirm
and establish said Town and have the plat thereof recorded.
Sec. 2. Be it further enacted, that each and every individual
having a claim or title to any lot or lots or claiming and occupying
any lot or lots in said Town shall upon application to the court of
common pleas, (having given thirty days previous notice at the court
house doors, of his intended application and have his or their said
lot or lots condemned by said court as a part of the Town aforesaid,
upon his, her, or their giving bond with security to be approved by
said court to pay to any person or persons who may thereafter estab-
lish a better claim to said lot or lots, the value of said Lot or lotts at
the time of its or their condemnation considering the same as unim-
proved. Provided however that nothing herein shall be construed to
affect the right of persons, who have both made improvements on the
same lott or lots or who have adverse claims to the same improve-
ments arising subsequent to the making of said improvements — But
in all cases where the improvements have been made by any individu-
al, or the person under whom he, or she claims such individuals
having their lots condemned shall be liable to pay to an adverse claim-
ant with a better title the value of the lots considered in their unim-
proved state at the time of the condemnation thereof.
Sec. 3. Be it further enacted that the court of Common pleas
for the county aforesaid shall allow the said commissioners a reason-
able compensation for their Services which said sum shall be collected
of the inhabitants of said Town by an apportionment to be made
120 ILLINOIS HISTORICAL COLLECTIONS
amongst them by the said court which apportionment the said court
is hereby authorised and empowered to make.
Geo Fisher
Speaker of the House of Representatives
Pierre Menard
president of The Concil
Approved Dec 11. 1813
Ninian Edwards
An Act establishing the boundary lines of Galletin County
Be it enacted by the Legislative Council and House of Representa-
tives of the Illinois Territory and it is hereby enacted by the author-
ity of the same That the line of Galletin County do begin at the mouth
of Lusks Creek on the Ohio River running up with said creek to
miles 's old Trace, Thence along said Trace to the meridian Line which
runs north from the mouth of the Ohio river, Thence north with
said line to the lower line of Madison County, Thence with said line
to the dividing line between Illinois & Indiana Territories and thence
with said line to the mouth of the Wabash, & thence down the Ohio
to the Beginning — This act to commence and be in force from and
after the Passage thereof
Geo Fisher
Speaker of the House of Representatives
Pierre Menard
president of The Concil
Approved Dec 11. 1813
Ninian Edwards
An Act Establishing the boundary line between the counties of
Randolph & St Clair
Be it enacted by the Legislative Council and House of Repre-
sentatives of the Illinois Territory and it is hereby enacted by the
authority of the same. That the Boundary line, between St. Clair
Randolph & Galletin Counties shall begin at the Mississippi river on
the line between Townships 3. &. 4 south of the Base line (which is
near Cahokia) Thence running east along said line between Town-
ships 3. & 4. aforesaid to the meridian line which runs north from the
mouth of the Ohio river, Thence along said meridian line until it
LAWS OF 1813 121
intersects, the Lower (or southern Boundary of the county of Madi-
son) This act to be in force from the passage thereof.
Geo Fisher
Speaker of the House of Representatives
Pierre Menard
president of The Council
Approved Dec 11. 1813
Ninian Edwards
Resolved by the Legislative Council and House of Representa-
tives of the Illinois Territory, That the legislature agree to the pro-
posals made by Matthew Duncan to both Houses on this day, for
printing the laws of this session and that whensoever the said work
shall be compleated the clerk of the House of Representatives, shall
transmit to the Auditor of public accounts, a copy of said proposals
whereupon it shall be the duty of said Auditor, to audit & settle the
account of the said Duncan, for the work aforesaid which shall be
paid out of any money in the Treasury — - 11th Decemr. 1813
Geo Fisher
Speaker of the House of Repra
Pierre Menard
president of The Council
Approved Dec 11. 1813
Ninian Edwards
United States of America, ! Office of the
> ss. Secretary
State of Illinois. J of State.
I, Louis L. Emmerson, Secretary of State of the State of Illinois,
do hereby certify that the foregoing Acts and Joint Resolution of the
Second General Assembly of the Illinois Territory, passed and
adopted at the regular session thereof, held in the year A. D. 1813,
are true and correct copies of the original Acts and Joint Resolution
now on file in the office of the Secretary of State.
IN WITNESS WHEREOF, I hereto set my hand and affix
the Great Seal of the State of Illinois, at the city of Spring-
field, this 9th day of July, A. D. 1920.
Louis L. Emmerson,
Secretary of State.
[seal]
LAWS
AND
JOINT RESOLUTIONS
PASSED
BY
THE LEGISLATIVE COUNCIL
AND
HOUSE OF REPRESENTATIVES
OF
ILLINOIS TERRITORY
AT
THEIR THIRD SESSION
HELD
AT KASKASKIA
IN 1814
(From the first complete printing made from the original records by
The Chipman Law Publishing Company, 1921.)
A LIST OF LAWS
Page
An Act for the Relief of the Legal Representatives of Alexander
Wilson, Dec'd ...[./..:.... 127
For the Division of Galletin County 128
Relating to Taxation 130, 144, 175
[Concerning the Abatement of Suits by the Death of the Parties. ... 131]
For the Relief of Those Who Forfeited Lands 132
Concerning the Town of Shawanoe Town 132
Concerning Executions 135
To Establish a Supreme Court 136, 160
Concerning the Militia 141
Relating to County Commissioners 144
Concerning the Town of Kaskaskia 145
Concerning the Establishment of Towns 146
Concerning County Courts 149, 169
Concerning Certioraries 150
Relating to Fees of Sheriffs and Clerks 151
Declaring the Eligibility of Certain Officers to a Seat in the Legisla-
ture 152
Concerning the Kaskaskia Indians 154
Clerks of Supreme Court to Administer Oaths 156
Concerning Indictments and Presentments 157
Concerning Negroes and Mullattoes 157
Relating to Ferries 158
Tax on Billiard Tables 158
Killing of Wolves 159
Concerning Justices of the Peace 161
Fees of Justices of the Peace, Constables, and Recorders 169
To Regulate Proceedings in Civil Cases 171
Relating to County Treasurer 172
Retaliation on Hostile Indians 177
Providing for Revising and Printing the Laws of Illinois Territory. . . 178
Concerning Appropriations 179
RESOLUTIONS
For Depositing and Distributing the Laws . 181
For a Revision of the Laws 181
For Depositing the Journals of Each House 181
( Office of the
State of Illinois < Secretary
( of State.
I, Louis L. Emmerson, Secretary of State of the State of Illinois,
do hereby certify that the following and hereto attached is a true
copy of the Territorial Laws of 1814, the original of which is now on
file and a matter of record in this office.
IN TESTIMONY WHEREOF, I hereto set my hand and cause
to be affixed the Great Seal of the State of Illinois, Done at
the City of Springfield this 6th day of December A. D. 1920.
Louis L. Emmerson,
Secretary of State.
[sealI
LAWS OF ILLINOIS TERRITORY
Enacted in 1814
An Act for the relief of the legal representatives of
Alexander Wilson deceased.
Whereas it appears to this Legislature that William H. Harrison
Esquire during- the time he acted as Governor in and over the Indiana
Territory and as superintendent of the United States' Saline within
the same while this Territory was and integral part of that, did
grant a permission to a certain individual to occupy and keep a public
ferry at the place now called Shawanoe Town which said permission
being unrevoked after the erection of this Territory into a separate
Government was with all the privileges, & subject to all the conditions
appertaining thereto, purchased by Alexander Wilson deceased for a
large sum of money which was paid and Satisfied by said Wilson,
who also before the establishment of Gallatin County obtained an
order of from the Court of Randolph County establishing and grant-
ing said ferry to himself which he continued to hold, occupy and
use as such until his death, and which has since been so held occupied
and used by his legal representatives. And Whereas doubts have
arisen to the legality of the establishment of said ferry or the right of
the legal representatives to hold the same in consequence of the margin
of the Ohio River at Shawanoe Town where said ferry was established
being according to the plan of said Town public ground and unap-
propriated to any individual. For remedy whereof and to settle
all disputes relative thereto
Sec. 1. Be it enacted by the Legislative Council and house of
Representatives and it is hereby enacted by the authority of the same
that the aforesaid ferry on the Ohio river at Shawanoe Town shall be
and hereby is confirmed to the legal representatives of said Alexander
Wilson deceased, with all the emoluments, advantages, privileges,
that can be granted to any individual under the existing laws relative
to ferries, but nevertheless it shall be subject in the hands of said
representatives to all the rules, regulations and penalties to which
ferries legally established by courts are subject. This act shall take
127
128 ILLINOIS HISTORICAL COLLECTION'S
effect and continue in force from and after the passage thereof.
Risdon Moore
Speaker of the House of Representatives
Benjamin Tablott
President Pro tem L C Council
Approved Nov 28, 1814
Ninian Edwards
An Act for the division of Galletin County.
Section 1. Be it enacted by the Legislative Council and House
of Representatives of the Illinois Territory and it is hereby enacted
by the authority of the same, That all that tract of Country within
the following boundaries (towit) Beginning at the month of Bompast
Creek on the big Wabash, and running thence due west to the Meridi-
an line which runs north from the mouth of the Ohio River. Thence
with said Meredian line and due North 'till it strikes the line of upper
Canada, Thence with the line of upper Canada to the line that sepa-
rates this Territory from the Indiana Territory and thence with the
said dividing line to the beginning shall constitute a separate county
to be called Edwards and the seat of Justice for said county shall
be at the Town now called Palmyra on the Wabash provided the pro-
prietor or proprietors of said land shall give to the said county for the
purpose of erecting the public Buildings a quantity of land at said
place not less than twenty acres to be laid off into lots and sold for
the above purpose. But should said proprietor or proprietors refuse
or neglect to make the donation aforesaid then and in that case it shall
be the duty of the Court of Common pleas who shall be appointed
for said county to fix upon some other place for the seat of Justice
as convenient as may be to the different settlements in said county.
Section 2. Be it further enacted that the Court of Common pleas
shall set in said county at the following periods (towit) The courts
for civil and criminal business on the fourth mondays of March July
and November yearly and every year, and the three other courts
shall be holden on the fourth mondays of January May and Septem-
ber yearty and every year.
Section 3. Be it further enacted that it shall and may be lawful
for the Governor of this Territory immediately to constitute the
militia within the county thus laid off into one Battalion the com-
manding officer of which shall have the same power to order out the
laws of 1814 129
militia as is now possessed by the Lieutenant Colonels of the respec-
tive Regiments.
Section 4. And be it further enacted that the said county of
Edwards is hereby allowed one Representative in the House of Rep-
resentatives of this Territory who shall be elected agreeably to law
and be entitled to all the immunities, powers & privileges prescribed
by law to members of the house of Representatives. And whereas
the next general election for representatives to the Legislature will
not take place before the month of September in the year 1816 and
in consequence thereof the said county will be unrepresented in the
house of Representatives until that time, for remedy whereof, An
election is hereby directed to be held at the seat of Justice for said
county on the first Thursday in March next and continue open three
days and to be conducted in all other respects, by the persons and in
the manner prescribed by law at which said election the persons en-
titled to vote may elect a representative to the house of Representa-
tives who shall continue in office until the 10th day of October 1816
and shall during his continuance in office be bound to perform the
same duties and entitled to the same privileges and immunities that
are prescribed by law to a member of the House of Representatives.
Section 5. Be it further enacted, That Whereas the counties of
Gallatin and Edwards compose one District for the purpose of elect-
ing a member of the Legislative Council, the citizens of said count}*
entitled to vote may at any election for a member of the Legislative
Council to represent said District, proceed to vote for such member,
and it shall morever be the duty of the Sheriff of the said County of
Edwards within ten days after the close of said Election to attend
at the Court House of the County of Galletin, with a statement of
the votes given in said county of Edwards to compare the polls of the
respective Counties, and it shall be the duty of the sheriff of Galletin
County to attend at such time and place, with a statement of the
votes of Galletin County and upon counting the votes of the respective
counties, it shall be the duty of the said sheriff of Galletin & Edwards
counties to make out and deliver to the person duly elected a certifi-
cate thereof. If the said Sheriffs or either of them shall refuse or
fail to perform the duty required by this section, such delinquent,
shall forfeit and pay the sum of two hundred dollars to be recovered
by action of debt or Indictment one half to the use of the Territory
and the other half to the person suing for the same.
130 ILLINOIS HISTORICAL COLLECTIONS
Section 6. Be it further enacted that the citizens of said county
of Edwards are hereby declared to be entitled in all respects to the
same rights and privileges in the Election of a Delegate to Congress
as well as of a member to the House of Representatives of the Terri-
tory that are allowed by law to the other counties of this Territory,
and all elections are to be conducted at the same times and in the
same manner, except as is excepted in this law as is provided for
other counties. This act shall commence and be in force from and
after the passage thereof.
Risdon Moore
Speaker of the House of Representatives
Benjamin Talbott
President of the Council
pro tem
Approved this 28th Nov 1814
Ninian Edwards
An Act to repeal part of an act entitled, "an act for levying and
collecting a tax on land.
Sec. 1. Be it enacted by the Legislative Council and Louse of
Representatives of Illinois Territory, That so much of the seventh
section of an act passed at the first session of the Illinois Legislature,
on the 23rd day of December 1812 entitled "an act for levying and
collecting a tax on land" as relates to the forfeiture of Lands fraudu-
lently given in to the commissioners shall be and the same is hereby
repealed —
Sec. 2. Be it further enacted, That in all cases where persons
either residents or non-residents shall fail to give in a list of their
lands according to law such persons shall be subject to pay tripple the
tax imposed on said land by law any laws or parts of laws to the
contrary notwithstanding, This act to commence and be in force from
and after the passage thereof.
Risdon Moore
Speaker of the House of Representatives
Pierre Menard
president of The Council
Approved Dec 1. 1814
Ninian Edwards
LAWS OF 1814 131
An Act concerning the abatement of suits by the death of the parties.
Sec. 1. Be it enacted by the Legislative Council and house of
Representatives of the Illinois Territory, That whenever any writ
original or subsequent process, shall be sued out of any of the Courts
of this Territory and after the execution thereof the defendant or
defendants shall depart this life before final judgment obtained there-
in, such action shall not abate if the same were originally maintain-
able against the executors or administrators of such defendant, but it
shall be lawful for the plaintiff or plaintiffs in any such suit to have,
after suggesting the death of the defendant on the record, a sum-
mons to the Executors or administrators of the deceased defendant,
to come forward and make themselves defendants to the said suit, and
if the said Executors or administrators shall appear at the court in
obedience to the summons to enter themselves, Defendants to the
action they shall be entitled to a continuance untill the next term
without costs if they desire it and the suit shall then progress in all
respects in the same manner as if it had been brought against them
in the first instance — If the said Executors or administrators shall
fail to appear and enter themselves defendants (being served with
the summons as aforesaid, or any one of them being served with the
summons) the plaintiff may proceed against them as in cases of
default. — Provided that where Judgment is obtained under this act,
no execution shall issue until one year from the date of the letters of
administration.
Sec. 2. Be it further enacted, That if the plaintiff or plaintiffs
in any suit after the Execution of the writ therein shall depart this
life before final Judgment, such suit shall not abate provided the same
were originally maintainable by the Executors or administrators of
such decedant, but the executors or administrators of such decedant
may have a summons to the defendants notifying him, her or them
that they have entered themselves plaintiffs in said suit, and that they
intend to prosecute the same ; after which summons the suit shall
progress to final Judgment and Execution in the same manner as if
the plaintiff were living.
Sec. 3. Be it further enacted, that if there be two or more plain-
tiffs or defendants, and one or more die ; and the cause of action
survives to the plaintiff or against the Defendant living it shall not
132 ILLINOIS HISTORICAL COLLECTIONS
abate, any law or parts of laws to the contrary notwithstanding. This
act to be in force from its passage.
Risdon Moore
Speaker of the House of Representatives
Pierre Menard
president of The Coimcill
Approved Dec 1. 1814
Ninian Edwards
An Act for the relief of those who forfeited lands by failing to give
a list to the commissioners
Whereas it has been represented to the General Assembly of
the Illinois Territory, that the owners and possessors of Land in some
instances have failed to list all their lands subject to taxation as the
law directs, and the land in consequence thereof is forfeited to the
use of the Territory for remedy thereof,
Be it enacted by the Legislative Council and House of Repre-
sentatives of the Illinois Territory and it is hereby enacted by the
authority of the same, That in all cases, where the owner or owners
of land in said Territory have omitted or neglected to list all their
lands subject to taxation as the law requires, that the land so omitted
or neglected to be listed, may be redeemed by the payment of tripple
tax on the same. Provided the owner or owners thereof pay into the
office of the auditor, the same, on or before the first day of March next,
and the Auditor is hereby authorised and empowered to receive the
same and to give a receit for the same.
This act to commence and be in force from and after the passage
thereof.
Risdon Moore,
Speaker of the House of Representatives
Pierre Menard
Approved Dec 8. 1814 president of the Councell
Ninian Edwards
An Act concerning the Town of Shawanoe Town
Sec. 1. Be it enacted by the Legislative Council and House of
Representatives of the Illinois Territory, and it is hereby enacted by
the authority of the same That the following persons be and they are
laws of 1814 133
hereby appointed Trustees of the Town of Shawanoe Town to contin-
ue in office until the first monday in November next, and until the
Election of successors as hereinafter provided, viz., Harry Oldham,
Thomas E. Craig, John Marshall, George W. Prazer & Joseph M.
Street.
Sec. 2. Be it further enacted that the holders of Lotts in said
Town being residents thereof or being- in possession of any lott or lotts,
and holding a bond for conveyance, shall be & they are hereby author-
ised to elect five Trustees, annually on the first monday of November
That it shall be the duty of the Sheriff of Galletin County to give
twenty days previous notice in writing at the door of the court house
of said county, that such an election will be holden, and also to super-
intendent and conduct the same, and may employ a clerk to assist him
in keeping the poll for which services compensation shall be made by
the Trustees.
Sec. 3. Be it further enacted that the Trustees shall have power
to appoint a clerk to their Board, & annually to appoint an assessor
whose duty it shall be to value and assess all the Lotts in said Town
and make return thereof to the Trustees having previously taken an
oath before some Justice of the peace, truly and impartially to per-
form the same, but in the valuation of said lots the Houses and other
improvements erected thereon shall not be taken into consideration.
Sec. 4. Be it further enacted that upon the return of such list
of Taxable property by the assessors the Trustees shall levy a tax
thereon at a rate not exceeding two percentum per annum on the
valuation of said lots, for surveying the Town, paying the expence
of their offices and cleaning and keeping in repair, the streets and
such other improvements as may be deemed expedient & necessary by
the Board of Trustees.
Sec. 5. Be it further enacted That it shall be the duty of the
Board of Trustees annually after the assessment shall have been made
as aforesaid to appoint a. collector who shall before he enters on the
duties of his office give bond and security to the Trustees or a majority
of them in double the sum to be collected, conditioned for the faithful
collection and accounting for the same according to law. The said
collector shall be by sale of the Lotts or otherwise, collect and account
with the Trustees, for the amount of the taxes put into his hands for
collection, within three months from the time of the list of assessment
being put into his hands for collection. For the collecting of the said
JD4 ILLINOIS HISTORICAL COLLECTIONS
Taxes the Trustees shall allow the said collector six per cent on the
amount collected. The said collector shall make personal application
to the person or persons charged with the tax in the list of assessment
if they be residents of the said Town before he shall expose to sale
any lot or other property to make the amount of the tax due from
such inhabitant and if the amount be not paid to the collector within
one month after such application, It shall & may be lawful, for the
collector to seize any personal property of any such delinquent which
he may find in said Town, and after having given ten days previous
notice in writing at some public place in said Town to make sale
thereof or so much as will pay the tax and costs of keeping the prop-
erty ; and in case the collector cannot find any property whereof he
can make the taxes due from any person, charged, with the taxes
aforesaid It shall and may be lawful for the collector, to sell the whole
or so much of each lot at public sale, after having given twenty da.vs
previous notice in writing in three of the most public places in said
Town as will pay the tax due thereon, and shall give the purchaser
or purchasors a certificate thereof which shall vest the title completely
in whose name soever the same may be sold, unless the same be re-
deemed by the owner by paying to the purchaser within twelve months
after such sale the amount of the purchase money with twenty-five
per cent thereon.
Sec. 6. Be it further enacted That on the death resignation or
removal of anyone or more of the Trustess, the vacancy shall be filled
by the remaining Trustees who shall appoint a successor or successors
to continue in office until the next Election and in case there should
not be an election held for Trustees at the time appointed by this
act the last Trustees in office shall continue in office until the next
annual election.
Sec. 7. Be it further enacted That the Trustees of the said Town
or a majority of them shall have power and authority to make such
Bye-laws, rules and ordinances for the good regulation of the said
Town as shall to them seem meet (if not inconsistant with the laws
of this Territory, nor the ordinance) and cause the same to be pub-
lished in the most public places in said Town from time to time for
the information of the citizens thereof and it shall be the duty of the
said Trustees to procure some convenient piece of ground and cause the
same to be enclosed for a public burying ground. And it shall more-
over be the duty of said Trustees to cause the said Town to be sur-
laws of 1814 135
veyed, and a plan thereof recorded in the Recorder's office of Galletin
County, and may provide for affixing posts or stones at the corner
of each square or lot to perpetuate the same, and may appoint one
or more of the Trustees to superintend the surveying the same.
Sec. 8. Be it further enacted, That any three of the Trustees
may and shall be sufficient to constitute a Board. This act to be in
force from and after the passage thereof.
Risdon Moore
Speaker of the House of Representatives
Pierre Menard
president of the Councill
Approved Dec. 8th 1814
Ninian Edwards
An Act concerning executions.
Sec. 1. Be it enacted by the Legislative Council and House of
Repreesntatives of the Illinois Territory, and it is hereby enacted by
the authority of the same, That all writs of execution that may be
hereafter issued from the clerks of the General Court or any court
of Common Pleas shall be made returnable within thirty days from
the date thereof if directed to the sheriff of the county in which the
execution issued but if directed to a different county from that in
which the execution issued then and in that case it shall be made re-
turnable in forty days from the date thereof.
Sec. 2. Be it further enacted that it shall be the duty of all
sheriffs of the respective counties within this Territory when he shall
receive an execution to endorse on the back thereof the day and hour
when he received it, and it shall bind the personal Estate of the de-
fendant or defendants which may then be in the county to which the
execution is directed, from the date of the endorsement threon as
aforsaid made.
Sec. 3. Be it further enacted, That any sheriff who shall fail to
comply with the duty imposed on him by the second Section of this
act shall forfeit and pay the sum of one hundred dollars, for every
such neglect of his duty, by an action of debt, indictment or present-
ment, one-half to the informer, and the other half to the Territory,
and he shall moreover be liable to the party injured for such damages
as he may sustain thereby.
Sec. 4. Be it further enacted that if it appears from the
136 ILLINOIS HISTORICAL COLLECTIONS
return of a Fieri facias, that the defendant or defendants have not
goods or chattels lands, or tenements sufficient to satisfy said exe-
cution in the county in which the Judgment was rendered the Plain-
tiff may immediately sue out another execution on said Judgment,
and have it directed to any county in the Territory he may think
proper.
Sec. 5. Be it further enacted that on all Judgments now entered
or hereafter to be entered on any mortgage in this Territory and the
mortgaged premises sold on a writ of Levari facias shall not bring the
sum for which Judgment and costs were entered, it shall and may then
be lawful for the plaintiff after the return of said levari facias and the
sale of the said mortgaged property to issue other executions against
the person or estate of said defendant, for the recovery of the sum
remaining due on said judgment as in other cases. This act shall
commence and be in force from and after the first day of January
next.
Risdon Moore
Speaker of the Houes of Representatives
Benjamin Talbott
President of the Council
Approved Dec 9. 1814 Protem
Ninian Edwards
An Act establishing a supreme Court fot' Illinois Territory .*
Sec. 1. Be it enacted by the Legislative Council and house of
Representatives, and it is hereby enacted by the authority of the same.
That the Judges appointed for this Territory under the authority of
the Government of the United States shall constitute a court to be
styled the "Supreme Court of Illinois Territory" which shall be
holden in the same manner and at the times and places hereinafter
mentioned that is to say in the county of Edwards on the second
monday in February and fourth monday in July. In Galletin, third
monday in February and first monday in August. In Johnson
fourth monday in February, and second Monday in August. In
Randolph the first monday in March, and third monday in August.
In St Clair third monday in March and first monday in September.
* This law is published here in its chronological order although in the
Chipman edition it followed "An Act to make appropriations for the ensuing
year."
laws or 1814 137
In Madison the fourth monday in March and second monday in Sep-
tember, Yearly and in every year.
Sec. 2. Be it enacted by the authority aforesaid, That the said
courts shall be holden at the respective court houses of said Counties,
and shall in each county have Jurisdiction over all persons therein,
and in all causes, matters or things at common Law or in chancery —
arising in each of said counties, except in cases where the debt or
demand shall be under twenty dollars in which cases it shall have no
Jurisdiction except where the same shall be brought before it by
appeal or writ of error.
Sec. 3. The said Judges shall be conservators of the peace, and
the said court or any Judge thereof shall have power to award injunc-
tions, writs of ne exeat, habeas corpus, and all other, writs and process
that may be necessary to the execution of the power with which they
are or may be vested.
Sec. 4. The said court shall have power to hear and determine
all Treasons, felonies, and other crimes, and misdemeanors that may
be committed within the respective Counties aforesaid that may be
brought before it by any rules or regulations prescribed by law.
Sec. 5. The said court shall have Jurisdiction in all causes,
suits and motions against public debtors, sheriffs, clerks, and all
collectors of public money of every denomination whatsoever, for &
in behalf of the Territory of any county thereof — and in all cases
where it may have been the duty of any sheriff, clerk, or collector of
public money to have made collections, and have settled with the
proper authority, and he or they shall have failed to have done so,
or shall hereafter fail so to do. And there shall appear any defect
in the Bond given by said officers or other proceeding, sufficient to
exempt from liability the Security or Securities of said officer, or to
defeat the ordinary proceedings against himself the court shall have
power to compel such person whether in or out of office who either has
collected public money or aught to have done so, to exhibit upon oath
a full and fair statement of all monies by him collected and a list of
all persons as far as it may be practicable to obtain the same of
whom such person had a right to collect and who had failed to pay
him accordingly and the said court shall upon hearing the whole case
without regard to form have power to give Judgment for such sums
of money which such person or persons as aforesaid ought to be liable
to pay according to the true spirit of the Laws and the principles of
138 ILLINOIS HISTORICAL COLLECTIONS
Equity. Provided however that such person or persons as aforesaid
shall have reazonable notice of the time and place when and where a
motion to the court against him or them for the purposes aforesaid
is intended to be made.
Sec. 6. All the powers at present vested in the General Court,
and all the Common Law Juridsiction, whether of a civil or criminal
nature now vested in the several courts of common Please, not incon-
sistent with the principles of this law, shall be and hereby are vested
in the Supreme Court hereby established, and the rules and regulations
prescribed by law for the exercise of those Powers in all cases when-
ever the same may be applicable shall govern said Court and be pur-
sued by parties litigant therein and in all cases not provided for by
law, the said court shall have power to adopt rules and regulations
necessary for effectuating the powers hereby granted to it.
Sec. 7. All suits shall be tried in the counties in which they
originate, unless in cases that are or may be otherwise specially pro-
vided for by law and in all cases except those hereinafter mentioned —
One of the Judges shall be sufficient to constitute a court.
Sec. 8. In all criminal cases where the charge shall be of such a
nature as in case of conviction to subject the offender to capital punish-
ment or burning in the hand or elsewhere two Judges shall be neces-
sary to proceed upon the trial of the issue whether in law or fact Pro-
vided however that if only one Judge shall attend the court, and any
prisoner shall notwithstanding petition to be brought to trial, one
Judge shall constitute a court for such purpose. When two Judges
shall attend, all questions arising in criminal cases and submitted to
the court, in case the court shall be divided, shall be considered as
adjudged in favour of the criminal, and if the court shall be divided
in the final Judgment or sentence, Judgment shall be entered up in
favour of the prisoner and he forthwith discharged.
Sec. 9. If no Judge shall attend on the first day of any court,
such court shall stand adjourned from day to day until a court shall
be made if that shall happen before four of the clock in the afternoon
of the third day.
Sec. 10. If a court shall not sit in any term, or shall not continue
to sit the whole term or before the end of the term shall not have heard
and determined all matters ready for their decision all such matters
and things depending in court and undertermined shall stand con-
tinued 'till the next succeeding- term.
laws of 1814 139
Sec. 11. If from any cause the court shall not set on any day in
a term after it shall have been opened, there shall be no discontinuance,
but so soon as the cause is removed the court shall proceed to busi-
ness until the end of the term, if the business depending before it be
not sooner dispatched.
Sec. 12. The Judicial term shall consist of six days in each
county during which time the court shall set unless the business before
it shall be sooner determined except in Randolph County where it
may set twelve days.
Sec. 13. A clerk shall be appointed by the Governor of the Terri-
tory in each county whose duty it shall be to issue process in all cases
originating in his county ; to Keep and preserve the records of all the
proceedings of the court therein and to do and perform in his county
all the duties now enjoined on the Clerk of the General Court, and the
several clerks of the Courts of Common please, except those which
relate exclusively to county business of which the court hereby estab-
lished has no original Jurisdiction.
Sec. 14. Whensoever the Governor shall appoint a clerk as afore-
said it shall be his duty if any court of common pleas shall have been
established in the county to demand of the clerk of said court of Com-
mon Pleas therein all the books and papers in his possession except
those which relate to county business of which the court hereby estab-
lished has no Jurisdiction, and such clerk of the court of Common
pleas shall thereupon deliver the same under the penalty of one
thousand dollars to be recovered by action of debt in behalf of the
Territory.
Sec. 15. In the causes now depending in the courts of common
pleas in the respective counties, the parties or their attorneys shall
be permitted to take all such measures for bringing to trial that might
have been taken if no change had taken place and the court hereby
established as far as possible proceed to the trial thereof in the same
manner that the present courts of common pleas might legally have
done had no other change than a mere alteration of the term taken
place, it being distinctly the intention of this Legislature to produce
no other change upon the causes now depending in those courts of
common pleas than merely to substitute the present for the former
courts. If however any causes requiring particular indulgence should
present themselves, the court are hereby empowered to grant continu-
ances for remedy thereof.
140 ILLINOIS HISTORICAL COLLECTIONS
Sec. 16. Appeals may be prayed and writs of error taken out
upon matters of law only in all cases wherein they are now allowed
by law. Appeals shall be taken to the court to be holden in Randolph
County and all writs of error shall be issued by the clerk of Randolph
county and be made returnable to the court in that county. But no
question upon appeal or writ or error shall be decided without the
concurrence of two Judges at least. And it being as important that
the exposition given by the Judges to a law should be made public as
that the law itself should be. — it is hereby declared to be the duty of
each Judge in all cases of appeals or writ of error to state the case and
give his reasons at large in writing for his opinion which shall be
carefully preserved by the clerk and kept subject to the inspection of
all who may desire to read the same.
Sec. 17. Nothing in this law contained shall be construed into a
repeal of the existing regulations for speedy trial of persons charged
with capital offences, but the Judges of the supreme court hereby
established shall perform the same duties in that respect that were
hitherto prescribed to them as Judges of the General Court.
-Sec. 18. The Courts of Common pleas for the several counties,
shall not hereafter possess or exercise any Jurisdiction given to the
Supreme Court of Illinois Territory.
Sec. 19. The sheriffs of the respective counties shall summon
Juries, and return in their respective counties, all process to them
directed to the Supreme Court in the same manner that, they have
heretofore been required to do to the courts of Common Pleas unless
in cases where the law shall specially prescribe otherwise
Sec. 20. There shall be appointed two attorneys to prosecute in
all cases in behalf of the Territory, one of which shall be appointed
to a district to be composed of the counties of Madison, St Clair and
Randolph. And the other shall be appointed to a district to be com-
posed of the counties of Johnson, Galletin & Edwards And each of said
attorneys shall prosecute in all cases according to law, that may
arise within his respective district, and each shall be allowed a salary
of one hundred dollars per annum to be paid out of the public
Treasury.
Sec. 21. Be it further enacted that all Sheriffs and clerks of
courts in the respective counties shall within six months from the
passage hereof remove their respective offices and all the papers and
records thereunto belonging to the seat of Justice of their respective
LAWS OF 1814 141
Counties, and they shall continue to keep their respective offices, and
all the books and papers thereunto appertaining at said Respective
seats of Justice in their respective counties, under the penalty of five
hundred dollars to be recovered by motion giving the party twenty
days previous notice thereof in writing, in an}7 court having Jurisdic-
tion of the same, one half to the informer and the other half to the
use of the said county. This act to commence and be in force from
and after the first day of January next.
Risdon Moore
Speaker of the House of Representatives
Pierre Menard
president of The Councel
Approved this 13th Deer 1814
Ninian Edwards
An Act concerning the Militia.
Sec. 1. Be it enacted by the Legislative Council and House of
Representatives and it is hereby enacted by the authority of the same
That whensoever any draft of the Militia shall be ordered within any
regiment, the Governor of the Territory is hereby empowered to direct
that a court martial shall meet at the place which may be appointed
in said regiment for the rendezvous two days before the time ap-
pointed for such rendezvous, which said court shall set until the ex-
piration of the daj^ of Rendezvous and shall have power to hear and
determine upon all excuses that may be made by any individual,
within the two first days of its session for exemption from Service and
in no instance shall any militiaman be exempted from Service who
shall not have made his application within the time before mentioned.
Sec. 2. Whereas many persons with small hurts or injuries
frequently avail themselves thereof to procure exemption from per-
forming their tours of duty, though they be able to pursue their own
private business, very expert with fire arms in hunting and other
amusements, and more able than many others to employ substitutes
It is hereby directed to be the duty of the aforesaid court martial to
enquire diligently into those circumstances, and to refuse certificates
of exemption to any person or persons that said court may believe
are able to do militia duty, notwithstanding such person or persons
may labour under some partial disadvantages.
Sec. 3. Where-ever any person shall fail or refuse to perform
142 ILLINOIS HISTORICAL COLLECTIONS
his tour of duty without reasonable excuse made within the time
aforesaid, unless he shall be able to show that he had a sufficient
excuse, and that it was not in his power to attend within the time and
at the place hereby required to make the same it shall be the duty of
said court martial to give Judgment against such delinquent in any
sum not more than sixty dollars per month for the time he may be
required to serve, nor less than thirty dollars for each month and it
shall be the duty of the Judge advocate, to transmit a certified copy
of all fines thus assessed by any court martial to the Sheriff of the
county together with the warrant of said court, and also a certified
copy of said fine to the auditor of public accounts who who [sic] shall
charge the said sheriff therewith as in the case of Territorial Taxes
which said certificate, shall be transmitted by the Judge advocate
to the sheriff and auditor within twenty days from the assessments
of said fine, and the sheriff shall collect the same within sixty days
from the time he received the warrant of said court martial and pay
the same into the public Treasury giving ten days notice of the sale
of the delinquents property, and any Judge advocate or sheriff fail-
ing to perform the duties herein required shall forfeit and pay double
the amount of the fine imposed by this law.
Sec. 4. All and every officer who shall be appointed to compose
any court martial and failing to do so shall pay the sum of (Towit,)
a captain (or any officer of higher grade) not more than fifty dollars,
nor less than Ten dollars — All officers under the Rank of Captain,
failing as aforesaid shall for every such offence pay a sum not more
than thirty dollars nor less than six dollars to be recovered in the same
manner as is hereinbefore directed.
Sec. 5. The Adjutant shall for summoning, and for attending
any Court Martial as a compensation for his services herein receive
the sum of two dollars per day for each and every day's service for
which he shall obtain a certificate from the Court martial to the audi-
tor of Public accounts, who shall give him a warrant to the Territorial
Treasurer for the amount thereof, and all sheriffs for levying and
collecting all and every fine imposed by this act shall be allowed the
same compensation as for collecting the Territorial Tax.
Sec. 6. The Judge advocate, for his services rendered at any
Court Martial as aforesaid shall receive the sum of three dollars for
each day he may serve therein, who shall for his services as aforesaid
obtain from said Court martial a certificate thereof to the auditor
laws of 1814 143
of public accounts, who is hereby required to give him a warrant
for the Territorial Treasurer for the same.
Sec. 7. The said court martial may be* adjourned from day
to day until every case of delinquency shall have been decided or may
be convened at any time by the Governor, for the purpose of decid-
ing upon those cases of delinquency, though no adjournment may
have been entered on their proceedings.
Sec. 8. If the Governor of the Territory should be unable or
should fail to require the attendance of a court martial as aforesaid
for the purposes aforesaid. The powers hereby given to him in that
particular shall be exercised by the Lieutenant Coloncy of the Regi-
ment, or the commanding officer of the department in which a draft
may be ordered.
Sec. 9. If any person drafted to perform a tour of duty shall
be able within the time specified for that purpose to exhibit to the
aforesaid court a reasonable ground for exempting such person from
the performance of such Tour the said court shall give to such person
a certificate thereof, which shall be sufficient to exempt him from the
tour for the time being.
Sec. 10. If any person shall be legally drafted and notified to
march and shall fail or refuse to do so (not having obtained a certifi-
cate of exemption from the Court aforesaid) such person shall be
considered as a deserter, and it shall be lawful for any one, and shall
be the particular duty of all militia officers to apprehend such per-
son, and deliver him to any officer commanding in the detachment to
which such deserter may belong.
Sec. 11. The Governor of the Territory shall be and hereby
is empowered to raise and organize as many companies of mounted
Riflemen in this Territory as he may deem requisite for any service
that is likely to be wanting. Any officer appointed to command in any
one of those companies (they being intended only for temporary pur-
poses) shall not loose thereby any appointment he may hold in the mili-
tia. Such companies when raized and organized shall be subject to be
called into Service at any moment and shall continue in Service three
months after they shall reach the Rendezvous that shall be appointed
for them, But if they or any one of them shall make a specific tender
of their services for six months or any longer period they or any one
of them so tendering their services shall be liable when called upon
to perform the tour of duty so stipulated, and any person enrolled
144 ILLINOIS HISTORICAL COLLECTIONS
in any one of said companies who shall fail or refuse to perform the
tour of duty required, shall be subjected to the same punishment, and
subject to the same coercion in every respect whatsoever as is pro-
vided in this law against persons drafted and failing or refusing to
perform their tour of duty.
Kisdon Moore
Speaker of the House of Representatives
Pierre Menard
president of The Councell
Approved Dec 14th 1814
Ninian Edwards
An Act to repeal part of an act entitled "An act fof levying and col-
lecting an additional Revenue," and to amend the "act for levying
and collecting a tax on land
Be it enacted by the Legislative Council and house of Representa-
tives and it is hereby enacted by the authority of the same. That so
much of the law (passed by the Legislature of this Territory on the
ninth of December 1813 entitled an act for levying and collecting
an additional revenue as relates to a poll tax imposed on such as do
not pay an annual land tax shall be and the same is hereby repealed.
Risdon Moore
Speaker of the House of Representatives
Pierre Menard
president of The Councel
Approved Dec 14. 1812 [sic]
Ninian Edwards
An Act Supplementary to an act Entitled "an act for authorising
the appointment of County Commissioners and, other purijoses
passed the 25th day of December 1812.
Be it enacted by the Legislative Council and House of Representa-
tives and it is hereby enacted by the authority of the same. That
the auditor be authorised to contract with the Registers of the Land
offices of Vincennes Shawanoe Town and Kaskaskia for Transcripts
therein required, for which and the other duties of him required by
the aforesaid act, he shall receive a competent compensation yearly
laws of 1814 145
and every year to be provided by law. Provided always that no tran-
script so obtained shall be included in any subsequent one.
Risdon Moore
Speaker of the House of Representatives
Pierre Menard
president of The Councill
Approved Dec 14. 1814
Ninian Edwards
An Act concerning the Town of Kaskaskia.
Sec. 1. Be it enacted by the Legislative Council and house of
Representatives and it is hereby enacted by the authority of the same
That an election shall be held at the court house in the Town of
Kaskaskia on the first day of March next for three Commissioners
for which every free white male inhabitant of the said Town above the
age of twenty-one years and owning a lott or lotts in said Town shall
be allowed a vote. The said election shall be superintended by a
Justice of the peace who shall return to the next succeeding Court of
common pleas or county court for the county of Randolph the aggre-
gate amount of votes for three successful commissioners which shall
be admitted to record, whereupon the said commissioners shall be au-
thorised to lay out the Streets for the Town of Kaskaskia. Provided
however that no building or other improvements shall be affected
thereby, without the consent of the owner or occupier thereof. And
provided they shall be governed as near as may be with the above
exception by the existing plan of the said Town. After which they shall
make a plat of said streets and exhibit thereon the relative situations
of the residents of said Town, which shall be presented as soon as may
be to the Court of Common pleas or County Court who shall thereupon
confirm and establish said Town and have the plat thereof recorded.
Sec. 2. Be it further enacted that each and every individual
having a claim or title to any lott or lots, or claiming and occupying
any lott or lotts in said Town, shall upon application to the court of
common pleas or county court, having given thirty days previous,
notice at the court house door of his intended application, and have
his or their said Lott or Lotts condemned by said court as a part of
the Town aforesaid upon his or her or their giving Bond with Security
to be approved by said court to pay to any person or persons who may
hereafter exhibit a better claim to said lott or lotts at the time of its
146 ILLINOIS HISTORICAL COLLECTIONS
or their condemnation, considering the same as unimproved Provided
however that nothing herein shall be construed to affect the right of
persons who have both made improvements on the same lott or lotts,
or who have adverse claims to the same improvements, arising subse-
quent to the making of said improvements but in all cases where
the improvements have been made by any individual or the person
under whom he or she claims, such individual having their lotts
condemned, shall be liable to pay to an adverse claimant with a better
title the value of the lots in their unimproved state at the time of
the condemnation thereof.
Sec. 3. Be it further enacted That the court of common pleas
or county court for the county aforesaid, shall allow the said commis-
sioners a reasonable compensation for their services, which said sum
shall be collected of the inhabitants of said Town, by an apportionment
to be made amongst them, by the said court, which apportionment the
said court is hereby authorised and empowered to maek.
Risdon Moore
Speaker of the House of Representatives
Pierre Menard
president of the Councell
Approved Dec 15. 1814
Ninian Edwards
An Act concerning the establishment of Towns.
Sec. 1. Be it enacted by the Legislative Council and House of
Representatives of Illinois Territory, and it is hereby enacted by the
authority of the same. That the county Courts in this Territory,
shall be and the same are hereby vested with full power and authority
in all cases within the bounds of their counties where they may seem
necessary and advantageous for the same and the people at large, by
an order of court to establish a Town and vest any particular tract
or parcel of land in Trustees for that purpose, on application of the
proprietor of the land, and the court shall on such order ascertain by
metes and bounds the quantities of land that they may deem neces-
sary for such Town, appoint the Trustees and fix the name by which
it may be called, which order of court shall as effectually vest the land
so allotted for a Town in such Trustees as if done by an act of the
Legislature. Provided however that no application shall be
made to any court for an order as aforesaid, unless notice
laws or 1814 147
of such application shall have been given to the public by ad-
vertisement at the door of the court house of the county in which the
land shall lie, for at least two months, and twice a month for three
months successively in the "Illinois Herald" or any other public
paper in this Territory previous thereto, and provided also, that no
Town shall be established on any land under this act, or any land
laid off in addition to any Town already established to which any
person or persons sets up a claim either in law or Equity, without
the consent of the adverse claimant or claimants. The land vested in
Trustees as aforesaid, shall be by them or a majority of them laid
off into convenient streets and lots, shall be disposed of, by them at
public auction, for the best prices that can be had, either in money or
property, as the proprietors of said Town may direct, having- previ-
ously advertised such sale at the door of the court house two months.
The said Trustees, shall take bond, with security or securities to be
approved of by the proprietor, for the payment of the purchase money
to the proprietor, and deliver such bond to him. The said Trustees
shall convey the lots in fee-simple to the purchasers, and shall more-
over have full power and authority to make such rules and regulations
for the government of said Town, as shall appear necessar}^ Provided
they are not contrary to the ordinance and laws of this Territory, and
shall settle and determine the bounds of all lots in said Town, & fill
any vacancy that may happen, by death, resignation refusal to act
or removed out of the county, of any of the Trustees, so appointed
or elected as hereafter directed.
Sec. 2. And the Trustees of any Town established b}^ this act
are hereby empowered to cause the streets, of the said Town to be
cleaned, and repaired by the inhabitants thereof, and if thej^ or any
of them, shall refuse to clean, or repair the part of said streets as-
signed them it shall be lawful for the said Trustees or a majority of
them to hire the cleaning and repairing of said street and levy the
price thereof on the person or persons so failing and refusing, and in
case they do not make payment immediately the said Trustees are
hereby authorised and empowered to recover the same before any
Justice of the peace of the county with costs, and each Justice shall
grant execution accordingly.
Sec. 3. When the holders of lots in any Town established agree-
ably to this act, and actually therein shall amount to fifteen, they shall
elect Trustees of the said Town on the first court day of the first court
148 ILLINOIS HISTORICAL COLLECTIONS
in every second year, and the Trustees so appointed shall have the
same powers as those appointed by the court.
Sec. 4. When any person shall apply to the court of any county
to have a town established under this act it shall be the duty of such
court, and they are hereby directed to take bond with security in the
penalty of one thousand dollars payable to the Justices of said court
or their successors, from the person applying, conditioned that if any
person shall hereafter establish a better title either in law or equity
to the land or any part thereof on which said Town is erected, that he
shall pay and account to such persons establishing the better title,
for all sums of money, for which the lots or the part of them included
within the bounds of such better title were sold by the Trustees, which
bond may be put in suit by and at the expense of any person estab-
lishing a better title to the whole or any part of such land, from time
to time until the whole of the money for which any lotts included in
the bounds of any such better title have been sold, shall be recovered.
Sec. 5. Where any town has been established in this Territory,
and the proprietor of the land adjoining the same, shall wish to add
to or enlarge said Town and having advertised the same agreeably to
the direction of this act, the court of the county in which the same is
established or situate on this application are hereby authorised if they
deem it necessary to add any particular tract or parcel of land to such
Town, or by order of court vest in the Trustees, the same, taking
bond with approved security, from the proprietor as in other cases,
and the said Trustees shall proceed to lay off the land and streets and
lots and dispose of the same agreeably to the direction of this act, and
where any town has been heretofore established and not vested in
Trustees, or where the same has been vested, and the same Trustees
or a majority of them are dead or removed, it shall be the duty of the
county court in which such Town may be, on application of the pro-
prietor or without, if it shall to them appear necessary, to appoint
Trustees for such Town or Towns, and the lands appropriated by law
shall be vested in the Trustees so appointed and such Trustees shall
have full power and authority to convey lots in like manner and
possess the same powers as are given to other Trustees by this act and
where lots have been sold and not conveyed, the said Trustees are
hereby authorised and empowered to convey the same.
Sec. 6. The clerks of courts shall be entitled to the same fees to
laws of 1814 149
be paid and collected in like manner, for the duties enjoined on them
by this act, as for services of a similar nature.
Risdon Moore
Speaker of the House of Representatives
Pierre Menard
Approved Dec. 19. 1814 president of The Councel
Ninian Edwards
An Act concerning County Courts
Sec. 1. Be it enacted by the Legislative Council and house of
Representatives and it is hereby enacted by the authority of the same.
That there shall be a court of record in each county in this Territory
to be called and styled the county court to consist of three Judges,
who shall be conservators of the peace, any two of whom shall form
a quorum to be appointed and commissioned by the Governor. And
the said court, shall have, and possess and exercise, all and every of
of the powers, privileges and Jurisdiction as near as may be, and
perform the same duties, that the courts of common pleas of the
respective counties, might lawfully have performed on the first day of
November last, except so far as relates to the trial of causes civil and
criminal, over which the county court shall have no Jurisdiction for
the trial thereof
Section 2 The said courts shall annually hold three terms in their
respective counties viz, In the county of Edwards, on the fourth mon-
days of the months of January April and August, yearly and every
year. In the county of Galletin on the first mondays of the months
of February May & September, yearly and every year. In the county
of Johnson on the second mondays of the months of February May &
September, yearly and every year. In the County of Randolph on the
third mondays of the months of February May and September, yearly
and every year. In the county of St Clair on the fourth mondays in
the months of February, May & September. In the county of Madi-
son on the first mondays in the months of March, June & September,
yearly & every year. The Judges of said court shall respectivel}T
receive two dollars for every day they shall set, to be paid out of the
county levy.
Sec. 3. Be it further enacted that when the courts of common
pleas were directed to do or perform any duty or act at any par-
ticular Term thereof it shall be the duty of the county courts should
150 ILLINOIS HISTORICAL COLLECTIONS
their terms not be held at the time prescribed by law, for holidng
those Terms of the common pleas to perform the same acts or duties
at their Terms immediately preceding or succeeding those sessions
of the courts of common pleas.
Sec. 4. Be it further enacted that the clerk of said court shall
be appointed in the same manner in all respects as the clerks of the
Courts of common pleas were appointed ; and they shall have the same
powers in court and in the vacation thereof and perform the same
duties, that the clerks of common pleas, could or might have done,
and the clerk shall have the same fees that are or may be allowed
by law.
Sec. 5. Be it further enacted, That the said Judges shall have
power to take all and every species of recognizances and obligations
in matter civil and criminal, and they are hereby ordered, on proper
affidavit to order bail in civil cases, as the Judges of the courts of
common pleas might have done.
Risdon Moore
Speaker of the House of Representatives
Benjamin Talbott
President of the Council protem
Approved Dec 19. 1814
Ninian Edwards
An Act concerning Certioraries
Sec. 1. Be it enacted by the Legislative council and house of
Representatives, and it is hereby enacted by the authority of the same,
That no Writ of Certiorari shall hereafter lie to remove the proceed-
ings had in any civil cause before any single Justice of the
Peace in this Territory. And all such causes now pending on any
Writ of Certiorari in any court of this Territory should the proceed-
ings & Judgment of said Justice therein be reversed, for errors
therein, then the party in whose favour the Judgment before the
Justice of the peace was given, shall pay the costs of the removal, and
also, of the reversal of said Judgments, and the said court that shall or
may reverse said Judgment, shall at the same term of the reversal
order an issue on the merits of said cause to be made up instanter &
the case shall then proceed as other cases to final Judgment and
execution
Sec. 2 Be it further enacted that on all Judgments that have
LAWS OF 1814 151
been or may be rendered by Justices of the peace, the party against
whom such Judgment shall be rendered may appeal therefrom at
any term within thirty days after the rendition of such Judgment
any law to the contrary notwithstanding.
Risdon Moore
Speaker of the House of Representatives
Pierre Menard
president of The Council
Approved Dec 19th 1814
Ninian Edwards
An Act defining and explaining the fees of Sheriffs and Clerks
in certain cases.
Whereas unreasonable doubts have arisen relative to the amount
of the sum which the sheriffs and clerks of the General Courts or
Supreme Court are or hereafter may be legally entitled to receive out
of the county Treasury for their respective services in the public
prosecutions of those persons who are either or may be acquitted of
the charge or charges exhibited against them or discharged, or un-
able to pay the fee, and for the removal of all such doubts.
Sec. 1. Be it enacted by the Legislative Council and house of
Representatives and it is hereby enacted by the authority of the same,
That the sheriffs and clerks of the Supreme or general Court of the
respective Counties shall not be entitled to receive any compensation
out of said Treasuries, for any services they or either of them may
render in any prosecutions in which the Territory is party but
in lieu thereof each sheriff shall receive out of his own County
Treasury the sum of fifty dollars annually. And each clerk of the
General or Supreme Court shall receive annually out of their
respective County Treasuries the sum of thirty dollars in full, for all
services of every description wherein the respective Counties or Terri-
tory may be chargeable to any of said officers.
Sec. 2. Be it further enacted that in all criminal cases, the wit-
ness and Jurors' and constables fees shall be taxed in all bill of costs
as in civil causes which shall be paid according to law.
Sec. 3. Be it further enacted that upon executing a writ of exe-
cution and taking a repley bond thereupon the sheriff or coroner
executing the same shall charge six cents per mile from the court
house of his county to the place of actual service and also fifty cents
152 ILLINOIS HISTORICAL COLLECTIONS
for the replevy Bond but no more. And if any sheriff or coroner shall
charge, demand or receive any more or greater or other fees he shall
forfeit and pya to the party injured or attempted to be injured there-
by six dollars for every item so unjustly charged demanded or taken
by action of debt before any court having Jurisdiction thereof.
Sec. 4. If there be more persons than one named in any writ or
subpoena, the travel shall be computed from the court house of the
county of said sheriff to the place of service which shall be the most
remote, adding thereto the extra travel, which shall be necessary to
serve it on the other or others. Provided always that that extra travel
shall not exceed the distance between the place of service and the court
house of said sheriff's county, and it shall be the dut}7 of said sheriff
or coroner to endorse on each writ or subpoena he may execute the
distance he has traveled to execute the same regulating the calculation
of the mileage thereof according to the provisions of this Section, and
it shall be the duty of the sheriff to charge mileage to the place he
actually executes airy writ or subpoena and for no more, and if the
sheriff or coroner shall charge demand or receive more or greater or
other fees than are hereby allowed or if he shall not make his return
as above directed, he shall forfeit and pay to the party injured or
attempted to be injured or who may by the event and termination
of the suit be injured thereby for every item thus illegally charged
or demanded or received the sum of six dollars to be recovered by
action of debt by any person injured or attempted to be injured
thereby in any court having jurisdiction thereof. And if any sheriff
or coroner shall neglect or refuse to make his return as above directed,
on all writs and subpoenas, he shall forfeit and pay to the party in-
jured thereby who will sue for the same the sum of fifty dollars.
Risdon Moore
Speaker of the House of Representatives
Benjamin Talbott
President of the Council protein
Approved Dec 20th 1814
Ninian Edwards
An Act declaring the eligibility of certain officers to a seat
in the Legislature
Whereas the free people of this Territory are as competent as their
public servants to decide on whom it is their interest to eleet to repre-
laws or 1814 153
sent them in the General Assembly : and are too enlightened and inde-
pendent to recognize the odious and aristocratical doctrine "that they
are their own worst enemies" or to admit that it is the duty of their
representatives to save the people from themselves.
And whereas this Legislature being composed of the servants
and not the masters of the people, cannot without an arbitrary as-
sumption of power impose restrictions upon the latter as to the choice
of their representatives which are not warranted by the express words
or necessary implications of the ordinance from which the Legislature
derives its powers.
And whereas the duties of the Judges of the county courts estab-
lished by law are such as ..have heretofore been performed in this
Territory by Justices of the peace by whom they are also usually
performed in many of the states and there being nothing in the ordi-
nance, nor any reason to exclude from a seat in the Legislature those
Judges of the county courts or county surveyors or prosecuting
attornies that do not apply with equal force to militia officers and
Justices of the peace and the duties of the former being no more
incompatible with a seat in the Legislature than those of the latter,
Therefore
Sec. 1. Be it ennacted by the Legislative Council and house of
Representatives and it is hereby enacted by the authority of the same
that all laws or parts of laws creating any distinction as to eligibility
to a seat in the Legislature between Judges of the county courts
county surveyors and prosecuting attornies or district attorneys under
the United States, on the one hand and justices of the peace on the
other shall be and the same are hereby, abolished, and that hereafter
if the free and qualified voters of this Territory shall choose to elect
any Judge of a county court any county surveyor or any prosecuring
attorney they shall have the same right to do so as they have hitherto
had to elect Justices of the peace or militia officers.
Risdon Moore
Speaker of the House of Representatives
Pierre Menard
president of The Councell
Approved Dec 22, 1814
Ninian Edwards
154 ILLINOIS HISTORICAL COLLECTIONS
An Act concerning the Kaskaskia Indians.
Whereas a former law of this Legislature has been found insuffi-
cient to prevent evil disposed persons from selling and giving intoxi-
cating drinks to the Kaskaskia Indians or from cheating and defraud-
ing the said indians out of their property by pretended or real
purchases and whereas the former practice is productive of disorder,
and other pernicious consequences and the latter a violation of moral
Justice and good policy. For remedy thereof,
Sec. 1. Be it enacted by the legislative council and house of
Representatives and it is hereby enacted by the authority of the same
That if any white person or free person of color either male or female
shall hereafter without license from the Governor as superintendent
of indian affairs within this Territory or from some sub-agent ap-
pointed by him either sell to give to any Kaskaskia Indian or any other
indian residing with them any quantity of whiskey, gin, brandy, rum,
cider or other intoxicating drink such person so offending shall for-
feit and pay twenty dollars to be recovered upon warrant before any
Justice of the peace who shall upon conviction of such offence issue
execution returnable in thirty days against either the body or goods
of such offender as may be required of the said Justice of the peace,
and upon such execution there shall be no security whatever taken.
Sec. 2. If either of the offences stated in the above section,
shall be committed by any negro or mullatto being the slave or servant
of any person whatever, It shall be the duty of a Justice of the peace
upon application to him made according to law to issue his warrant
against such negro, or mullattoe and upon proof of the offences above
mentioned or either of them having been committed by said negro or
mullattoe, the Justices of the peace before whom such proof may be
made shall, order him or her so offending to receive on his or her
bare back if for the first offence fifteen lashes and for every subse-
quent offence of like kind double that number. Provided however
that the said corporal punishment shall not be inflicted if the owner
or any other person will in behalf of said negro or mullattoe pay the
sum of twenty dollars for each offence respectively.
Sec. 3. That it shall not be lawful for any person whatever with-
out license from the Governor or some sub-agent appointed by him
to purchase or receive by gift or otherwise of any of the before men-
tioned indians, any horse mare gun Tommahawk, knife, Blanket
Strouding, calico, saddle bridle, or any goods wares or merchandize
laws of 1814 155
whatever, that all such sales and purchases, or gifts shall be considered
as fraudulent on the part of the buyer or receiver, and that any white
person or free person of colour whatever so buying or receiving any
such articles of any one of those Indians shall be liable to pay a fine
of twenty dollars to be recovered before a Justice of the peace who
shall upon conviction of any such offender issue execution in like man-
ner as is directed in the first section of this act, and the said offender
shall restore the article or articles so bought or received & shall more-
over be liable to a suit in the supreme court for the fraud of buying
or receiving any such article as aforesaid whatever the amount or
value thereof may be and in all cases of Judgment against him or
her, he or she shall pay the costs.
Sec. 4. If either of the offences stated in the last preceding sec-
tion of this act shall be committed by any negro or mullatto being the
slave or servant of* any other person, the said negro or mullatto so
offending shall be subject to the same proceedings and punishment
under the same conditions as are prescribed in the second section of
this act, and the owner shall either cause said negro or mullatoe to
restore any article or articles so purchased, or received by him or her
or said owner shall be liable in default thereof to the same proceedings
as if such owner had actually himself or herself bought or received
the said article or articles contrary to the intention of this law.
Sec. 5. In all the above cases and in all other cases of injuries
done to the said indians it shall be lawful for the Governor of the
Territory or any sub-agent appointed by him, to sue or warrant as
the case may require in behalf of any such injured indian.
Sec. 6. All fines imposed by this law after deducting thereout
all necessary expenses, shall be paid by the Governor or a subagent,
to the injured indian or Indians
Sec. 7. It shall be the duty of all Justices of the peace, sheriffs
and constables to aid and assist in the execution of this law according
to their respective offices.
Risdon Moore
Speaker of the House of Representatives
Pierre Menard
president of the Councel
Approved Dec 22. 1814
Ninian Edwards
156 ILLINOIS HISTORICAL COLLECTIONS
An Act empowering the clerks of the supreme court to administer
oaths in certain cases and for other purposes.
Whereas the existing law, requiring that the Governor, of the
Territory shall administer the oaths prescribed by law to all officers
appointed under the authority of this Government or that he shall
issue a dedimus potestatem in such cases to some other person for that
purpose is found to be productive of inconvenience, and subject to
disappointments and delays in consequence of the extent of the Terri-
tory and various casualties that attend the sending special powers.
For remedy whereof
Sec. 1. Be it enacted by the Legislative Council and house of
Representatives of the Illinois Territory and it is hereby enacted by
the authority of the same, That the clerks of the supreme court in the
respective counties in which they are clerks shall be authorised, and
are hereby required to administer the oaths prescribed by law to all
persons who may be appointed to offices, within their respective coun-
ties whenever thereto required by any person producing a commis-
sion from the Governor appointing him to an office as aforesaid.
And it shall more ever be the duty of each clerk as aforesaid to make
and preserve a record of all such cases, and transmit once in every
three months a list of those persons to whom he may have administered
such oaths, together with the several dates thereof to the Secretary
of the Territory.
Sec. 2. Be it further enacted, that in all cases whatever in which
it has heretofore been the duty of the respective clerks of the courts
of common pleas to receive redemption money, for lands sold for
taxes, that duty shall hereafter be performed by the respective clerks
of the supreme court, in their respective counties, and they shall in
all respects, whatever be subject to the same Laws which now govern
the said clerks of common pleas in such cases.
Sec. 3 Be it further enacted, That all clerks of courts shall be
and hereby are authorised and empowered to administer all oaths
upon any affidavit to be presented to the courts of which they are or
may be the clerks, and all other oaths whatever appertaining to the
business of their respective offices.
Risdon Moore
Speaker of the House of Representatives
Approved Dec 22. 1814 Pierre Menard
Ninian Edwards president of The Councel
laws of 1814 157
An Act concerning Indictments and presentments.
Sec. 1. Be it enacted by the Legislative Council and house of
Representatives, and it is hereby enacted by the authority of the same,
That where two or more persons shall be indicted for the same tres-
pass or misdemeanor no more costs shall be allowed than if it were
against one only.
Sec. 2. Be it further enacted that in all cases of Treason, murder
or felony no prosecutor shall hereafter be required.
Sec. 3. That in all cases of indictments or presentments for tres-
pass or misdemeanor where the presentment or indictment shall be
made from the knowledge of two of the grand Jury, or upon informa-
tion of a conservator of the peace in the necessary discharge of his
duty, it shall be so stated at the foot of the indictment or presentment,
and no prosecutor shall be required, but in all other cases there shall
be a prosecutor. This act shall take effect from the passage thereof.
Risdon Moore
Speaker of the House of Representatives
_ _ • ,_„. Pierre Menard
Approved Dec 22. 1814 . , . „ m, ~ ,
^ president or The Councel
Ninian Edwards
An Act concerning negroes and Midlattoes.
Whereas the erection of mills and other valuable improvements
are greatly retarded in this Territory, from the want of Laborers,
and whereas also experience has proved that the manufacture of salt
in particular, at the United States Saline cannot be successfully car-
ried on by white laborers, and it being the interest of every descrip-
tion of inhabitants to afford every facility to the most extensive manu-
facture of that article, so necessary to them all, as the most natural
means of obtaining a certainty of the necessary supplies thereof at the
lowest price.
Sec. 1. Be it enacted by the Legislative Council and house of
Representatives of the Illinois Territory, and it is hereby enacted by
the authority of the same That if any slave whatsoever, shall volun-
tarily hire himself or herself, within the Territory, by the consent of
his or her master, for any term not exceeding twelve months, his or
her continuance in the Terriotry according to such hiring shall not
operate in any way whatever to injure the right of property in the
master, in and to the services of such slave or slaves, Provided however
158 ILLINOIS HISTORICAL COLLECTIONS
that in all such cases such slave or slaves shall be examined privately,
separate and apart from his or her owner by a Justice of the peace,
or any clerk of a court, as to his or her voluntary consent, and a certifi-
cate of such Justice or clerk shall be conclusive evidence of such Volun-
tary consent, and may be admitted to record, and provided that said
slave or slaves, shall for the time being, be considered and treated as in-
dented servants. This act shall commence and be in force from the
passage thereof.
Risdon Moore
Speaker of the House of Representatives
Pierre Menard
Approved Dec 22. 1814 president of The Councel
Ninian Edwards
An Act to amend an act entitled "An act to amend an act entitled an
act to establish and regulate ferries.
Sec. 1. Be it enacted by the Legislative Council and house of
Representatives and it is hereby enacted by the authority of the same.
That so much of the act entitled an act to amend an act entitled an act
to establish and regulate ferries, as declares that no ferry shall be
established by the court of common pleas in any county in this Terri-
tory across the Ohio and Mississippi Rivers within less than two miles
of an established ferry shall be and the same is hereby repealed.
Sec. 2. That in all future cases the county courts may grant
any ferry according to law that the respective county courts in their
several counties may deem necessary.
Risdon Moore
Speaker of the House of Representatives
Pierre Menard
Approved Dec 22. 1814 president of the Council
Ninian Edwards
An Act for levying and collecting a tax on billiard- Tables
Sec. 1. Be it enacted by the Legislative Council and house of
Representatives and it is hereby enacted by the authority of the same.
That all and every person or persons who shall erect or keep a billiard
table within this Territory shall annually on the first monday in
January, or within one week after erecting such Billiard Table enter
laws of 1814 159
the same with the assessor of the county in which such Billiard table
shall be erected and it shall be the duty of the Sheriff at the same time
and in the same manner as pointed out by law to collect the tax on
land to receive and collect from each person having entered such
billiard table the annual sum of forty dollars to be paid and accounted
for by said sheriff in the same manner as the other revenue taxes are
accounted for.
Sec. 2. If any person or persons who shall so keep or erect any
such billiard table shall refuse or neglect to enter the same as afore-
said he or she so offending shall on conviction thereof by presentment
or indictment be fined in any sum not less than forty dollars nor more
than eighty dollars with costs.
Sec. 3. In case of non payment of the tax on the days whereon
the same ought to be paid the sheriff shall levy the same by distress
and sale of the delinquents goods and chattels having previously given
ten days notice of the time and place of such sale and the Territory
shall have a lien on the said* Billiard table for the said taxes.
Sec. 4. All audited accounts against the Territory shall be re-
ceived by the sheriffs as collectors in payment of said Tax.
Risdon Moore
Speaker of the House of Representatives
Pierre Menard
President of The Councel
Approved Dec 22. 1814
Ninian Edwards
An Act to encourage the Killing of Wolves.
Be it enacted by the Legislative Council and house of Representa-
tives and it is hereby enacted by the authority of the same, That the
law passed in the Territory of Indiana on the fourteenth day of Sep-
tember 1806 entitled an act to encourage the killing of wolves shall
be and the same is hereby revived and shall be in force in this Terri-
tory from the passage hereof any law to the contrary notwithstanding.
Risdon Moore
Speaker of the House of Representatives
Pierre Menard
president of The Council
Approved Dec 22. 1814
Ninian Edwards
160 ILLINOIS HISTORICAL COLLECTIONS
An Act Supplemental to an act entitled "An act to establish a
Supreme Court for Illinois Territory.
Sec. 1. Be it enacted by the Legislative council and house of
Representatives, and it is hereby enacted by the authority of the same.
That so much of any law whatever as gives the style of the "General
Court" to the court heretofore required to be held by the supreme or
superior Judges of this Territory, who hold their appointment from
the president and Senate of the United States, and also all laws or
parts of laws inconsistent with the provisions of the act to which this
is a supplement, shall be and they are hereby repealed.
Sec. 2. That in all cases whatever the provisions of this act, and
that to which this is a supplement, shall have preference to provisions
in any former law, where-ever the same subject is embraced.
Sec. 3. That all powers and duties which were previous to the
passage of the act to which this is a supplement, vested in and en-
joined on the Judges of the courts of common pleas and Judges of
the General Court so far as the same are connected with the Jurisdic-
tion or duties of the supreme court of Illinois Terrtiory shall be
vested in and exercised by the Judges of the Supreme court which
shall perform all the duties imposed on the former General Court not
inconsistent, with the provisions of this act and that to which it is a
supplement.
Sec. 4. That all suits and other matters or things now depending
in the General Court, shall be tried and finally disposed of by the
Supreme Court required to be held at Kaskaskia, in the same manner
as if this law, and that to which it is a supplement, had not been
enacted. And all process and other proceedings which would have
been necessary to bring said suits or other matters to a final termina-
tion, shall and may be pursued, as though no change had taken
place. Provided, however that the style of the court now given in
lieu of the former style shall be observed in all proceedings requiring
any style to be used
Risdon Moore
Speaker of the House of Representatives
Pierre Menard
president of the Councel
Approved Dec 22. 1814
Ninian Edwards
LAWS OF 1814 161
An Act concerning Justices of the peace.
Sec. 1. Be it enacted by the Legislative Council and house of
Representatives and it is hereby enacted by the authority of the same.
That the Justices of the peace who have been or shall be appointed and
commissioned in and for the several counties in this Territory that
now exist & in such counties as may hereafter be created shall Jointly
or severally have full power to keep and cause to be kept all laws at
present in force or that may hereafter be made for the conservation
of the peace, and for the good Government of the citizens and inhabi-
tants of this Territory within the said counties respectively according
to the force from and effect of all such laws, of which they now have
or hereafter may have Jurisdiction and to apprehend, imprison and
punish all persons offending against those laws or any of them in
the said respective counties in such manner as according to those laws
shall be right and proper, and to cause to come before them, or any
of them, all persons who shall break the peace or have used or shall
use threats against any citizen or inhabitant, or any person within
this Territory, and under the protection of its laws concerning his
or her bodies, or the firing of his or her house barn or other buildings
or the unlawful distraction or injury of his or her property, and also
such persons who are not of good fame, where they are found to enter
into recognizance with sufficiently surety for the peace or their good
behaviour towards the people and inhabitants of this Territory, and
all those under the protection of its laws — And if the persons against
whom such proceedings are directed shall fail to enter into such
recognizance, it shall be the duty of the Justice of the Peace to cause
him or her to be safely kept in prison till he or she shall do the same
And further the said Justices shall have power to perform and it shall
be their duty to execute all such matters acts and things as by law
appertain to their office and are or shall be enjoined on them and
committed to their charge & execution
Sec. 2. That every Justice of the peace who shall take any recog-
nizance for the keeping of the peace or good behaviour shall also
make it a condition in said recognizance that he she or they therein
bound shall appear on the first day of the next succeeding session of
the supreme court to be holden in the county in which the case shall
happen and continue to abide there till discharged by said court it
shall also be the duty of said Justice to recognize all the witnesses to
appear at said court to testify against the offender and it shall be the
162 ILLINOIS HISTORICAL COLLECTIONS
duty of such Justice to return the recognizances thus required to be
taken by him to said court which shall direct the parties bound to be
called, and if they or any of them fail to appear then default shall
be entered and there recorded and the recognizances shall be prose-
cuted to effect. If however the party bound shall appear the said
court shall hear the evidence and may discharge or continue the recog-
nizance as shall appear to be most consistent with law.
Sec. 3. It shall be lawful for any Justice of the peace upon oath
being made before him that any person hath committed, or that there
is Just grounds to suspect that he or she hath committed any crimi-
nal offence within his county to issue his warrant to arrest the person
so charged, and to enquire into said charge and commit the person so
charged to Jail, or bail or discharge him according to the proof that
may be adduced and to the law arising thereupon. Provided however
that said Justices shall have no power to admit to bail or main prize
any person or persons charged with treason, murder manslaughter,
sodomy rape, arson, burglary, robbery, forgery or suspicion thereof,
or with any crime, punishable with death or burning in the hand or
elsewhere, and in all cases where the said Justices shall admit to bail
or mainprize, they shall recognize the party bound to appear on the
first day of the next succeeding session of the supreme court, in the
county in which the transaction may happen there to remain till dis-
charged by said court, and in all cases where justices of the peace,
shall either commit the person or persons charged to jail or admit
him or her to bail or mainprize, the said Justices shall recognize the
witnesses to appear at the time aforesaid and at the court aforesaid
to give testimony in the case whenever thereto required.
Sec. 4. Be it enacted by the authority aforesaid, That in case any
person against whom a warrant shall be issued b}^ any Justice or
Justices of the peace of any county of this Territory for any offence
therein committed or done shall escape go into, reside, or be in any
other county out of the Jurisdiction of the Justice or Justices grant-
ing such warrant as aforesaid it shall and may be lawful for and it is
hereby declared to be the duty of any Justice or Justices of the peace
of the county when such person shall escape, go into, under, or
be upon proof being made upon, oath or affirmation of the hand writ-
ing of the Justice or Justices granting such warrant to endorse his
or their name or names on such warrnat, which shall be a sufficient
authority to the person or persons bringing such warrant, and to
laws of 1814 163
all other persons, to whom such warrant was originally directed to
execute such warrant in such other county out of the Jurisdiction
of the Justice or Justices granting such warrant as aforesaid, and
to apprehend and carry such offender before the justice of justices
who endorsed such warrant or some other Justice or Justices of such
such other county where such warrant was endorsed, and in case
the offence for which such offender shall be so apprehended as afore-
said shall be bailable in law by a Justice of the peace, and such
offender shall be redely & willing to give bail for his or her appearance
at the next succeeding session of the supreme court to be holclen for
the county in which the offence was committed such Justice or Justices
of the peace of such other county before whom such offender shall be
brought, shall and may take bail of such offender for his or her ap-
pearance at the next succeeding session of the supreme court to be
held in and for the county where such offence was committed, in
the same manner as the Justices of the peace of the property county
might have done, and the Justice or Justices of such other county so
taking bail as aforesaid, shall deliver, the recognizance of bail, and
all other proceedings relating to said offender and offence before him
had to the constable or other person or persons, so apprehending such
offender as aforesaid who is and are hereby required to receive the
same, and to deliver over as soon as practicable, such recognizance,
and other proceedings to the clerk of the supreme court in the county
when the offender may be required to appear by virtue of such recog-
nizance— And, such recognizance and other proceedings shall be as
good and effectual in law to all intents and purposes, and of the same
force and validity as if the same had been entered into taken or ac-
knowledged before a Justice or Justices of the peace, in and for the
proper county where the offence was committed, and the same proceed-
ings shall be had thereon. And in case such constable or other person,
to whom such recognizance or other proceedings, shall be delivered as
aforesaid shall refuse or neglect to deliver over the same to the clerk
of such court as aforesaid where the offender is required to appear by
virtue of such recognizance, such constable or other person shall for-
feit thirty dollars, to be recovered against him with costs by action of
debt, bill plaint, or information in any court of record having cogni-
zance thereof, by any person or persons who will prosecute or sue for
the same And in case the offence for which such offender shall be
apprehended in any other county as aforesaid, shall not be bailable
164 ILLINOIS HISTORICAL COLLECTIONS
in law by a Justice of the peace, or such offender shall not give bail
for his or her appearance in the manner and according to the mode
herein prescribed to the satisfaction of the Justice or Justices before
whom such offender shall be brought in such other county, then the
constable or other person so apprehending such offender shall carry
and convey such offender before one of the Justices of the peace in the
proper county where such offence was committed there to be dealt
with according to law.
Sec. 5. Be it enacted by the authority aforesaid, That no action
of Trespass or false imprisonment, or information or indictment shall
be brought, sued, commenced, exhibited or prosecuted by any person
or persons whatsoever, against the Justice or Justices who shall en-
dorse such warrant for or by reason of his endorsing the same, but the
person aggrieved, shall have all the redress he may be entitled to
against the Justice or Justices who originally granted such warrant
in the same manner as such person or persons might have had in
case this clause in this act had not been made
Sec. 7. Be it further enacted by the authority aforesaid. That
the Justices of the peace in each county in this Territory shall have
cognizance in all cases wherein the demand shall not exceed twenty
dollars in which said causes they may give Judgment and thereupon
aware execution and in all such cases discounts shall be allowed, and,
the Justices shall give Judgment either for the plaintiff or defendant
as the case may be, Provided the plaintiff have reasonable notice that
such discount is intended to be offered. Provided always that no
execution shall be issued against the body of any defendant unless
the Judgment exceed the sum of four dollars which execution shall
be executed and returned by the sheriff or constable to whom directed
in the same manner as other executions are to be executed and re-
turned.
Sec. 6. Be it further enacted by the authority aforesaid. That
in all cases as aforesaid brought before any Justice of the peace, the
best evidence to establish the demand of either plaintiff or defend-
ant shall be required. Provided however that in all cases Avhere
either party may not have a witness or other legal evidence to estab-
lish a demand or discount or set off, the party claiming such demand
or discount shall be permitted to prove the same by his own oath, if
the adverse party shall refuse to deny the same upon his oath which
the Justice of the peace before whom the case may be depending shall
laws of 1814 165
be authorised to tender or administer to the party who may deny or
refuse to admit such demand or discount, and no person shall be
permitted by said Justices of the peace to deny his bond, promissoiw
note, or bill for money or other thing- unless such person shall first
make affidavit to the truth of such denial.
Sec. 7. And be it further enacted by the authority aforesaid,
That in case any person after being' summoned to answer any com-
plaint for debt before any Justice shall before the day of trial
remove out of the county in which he was so summoned such Justice
may nevertheless give judgment against him in the same manner as
if he had been personally present. And if any person after Judgment
of such Justice shall remove out of the county before satisfaction
made such Justice may issue execution against such person which
may be levied by any sheriff or constable of the county to which such
person may have removed Provided that in all such cases the
Justices so issuing such execution to another county shall endorse
on the back thereof that the party had removed after Judgment.
Sec. 8. And Be it further enacted by the authority aforesaid
that it shall be the duty of constables to levy all executions put into
their hands agreeably to the tenor thereof and to make due returns
of the same together with all summons or warrants to the magistrate
to whom they may be made returnable, and if any constable shall
fail to execute and make such returns or to pay to, or account with
any person for whom he may have received money on execution with-
in ten days after the receipt thereof, the person so injured as aforesaid
may upon application to any Justice within the county obtain a
warrant against him ; and such Justice shall upon proof thereof,
award Judgment and execution for the same, and all costs against
such constable, and also fine him for such abuse in a sum not exceed-
ing ten per cent on the amount so withheld ; and in case of neglect or
refusal to serve and return any warrant or summons as aforesaid,
may fine the constable so offending in a sum not exceeding the amount
of the demand against the defendant.
Sec. 9. Be it further enacted by the authority aforesaid that
Justices of the peace may issue summons for witnesses in any cause
civil or criminal to be tried or enquired into by them which being-
served three days before the trial, such witness shall be subject to a
fine of three dollars for default and the Justice may issue execution
for the amount, Provided said witness having notice to attend to
1G6 ILLINOIS HISTORICAL COLLECTIONS
answer such default shall not be able to shew a sufficient execuse for
not attending as required to do.
Sec. 10. And be it further enacted by the authority aforesaid,
that if any Justice of the peace shall be insulted or unlawfully dis-
turbed in the execution of the duties of his office said Justice shall
have power to fine any person so offending- in any sum not exceeding
ten dollars or to imprison or confine such offender for the space of
twenty-four hours, and all constables, sheriffs or other citizens shall
be aiding and assisting said Justice in the execution of such imprison-
ment, or on their failure so to do the said Justice shall have power
to fine any and each of them in any sum not exceeding ten dollars
and to issue execution thereupon.
Sec. 11. All fines that may be inflicted by Justices of the peace,
shall be accounted for and go in aid of the county levy.
Sec. 12. No justice of the peace shall hereafter be obliged to
keep any docket.
Sec. 13. Be it etc. That the county courts in their respective
counties shall cause to be erected and kept in good repair, or where
the same shall be already built shall maintain and keep in good repair
at the charge of the county one good convenient courthouse and one
sufficient Jail and shall for that purpose be and hereby are empowered
to levy a tax on the county at the time and in the manner provided
by law.
Sec. 14. Be it further enacted, That the said county courts shall
have full power and authority at all times, to enquire into the con-
duct of Jailors & the state of Jails in their respective counties & on
neglect of duty to cause such Jailors to be removed by an order to
the sheriff for that purpose.
Sec. 15. Be it etc that the said county courts, shall and they are
hereby empowered, and required to cause to be marked, bounded and
recorded the bounds and rules of their respective county prisons, not
exceeding ten acres, which marks and bounds may be renewed from
time to time as occasion may require, but every alteration in those
maks and bounds shall be recorded. And every prisoner not com-
mitted for treason or felony giving good security to the sheriff to keep
within the said rules shall have liberty to talk therein, out of the
prison, and keeping within said bounds, shall be adjudged in a law
a true prisoner.
Sec. 16. Be it etc. That in all Judgments given by a Justice
laws of 1814 167
of the peace when the amount thereof shall exceed four dollars the
party against whom such Judgment shall be given, shall have a right
to appeal from the same to the next county court to be held for the
county wherein the Judgment from which the appeal is made, and
the setting of the court. Whereupon the Justice or Justices who gave
such Judgment shall suspend all proceedings thereon, and shall
return the papers and the Judgment he had given to the clerk of
said county and the said court shall thereupon at their next session
hear and determine the same in a summary way without pleading
in writing, according to the Justice of the case, unless the said court
for good cause to them shewn shall continue the same to the next
court beyond which second court the said appeal shall not be con-
tinued, Provided however that the said court shall at all times admit
of any amendment of the papers or proceedings that may be necessary
to a fair trial of the cause upon its own intrinsic merits — And execu-
tion may be taken out on a judgment given by the said court on such
appeal in the same manner as if the cause had been originally insti-
tuted in said court. In all cases where a party may desire to appeal
from a Judgment of a Justice of the peace pursuant to this act, he
shall receive from the justice a copy of such judgment, and produce
the same to the clerk of the county court, and shall enter into bond in
the office of such clerk, in a penalty double the sum of such Judg-
ment with security who shall be approved of by the Justice from
whose judgment the appeal is made, such bond shall be conditioned
for the payment of the debt and costs in case the Judgment shall be
affirmed on the trial of the appeal. Upon the execution of such bond
the clerk shall certify the same to the magistrate and constable en-
joining further proceedings and issue a summons to the appellee to
appear to appear at the court to which the appeal is returned, noting
the day the same shall be set for trial by the clerk. The constable shall
summon the appellee, his agent, or attorney if within the county,
which summons shall be executed, ten days before the court where
the same shall be tried.
Sec. 17. Be it etc. That where the appellee shall reside in an-
other county the clerk of the court to which the appeal is made, shall
have power and authority to issue a summons to cause such appellee
to appear before the court, which summons shall be executed by the
appellant or some other person for him on the appellee, and satis-
factory proof of such service shall be made, to the court to which
168 ILLINOIS HISTORICAL COLLECTIONS
the summons shall be returned : & if the appellant shall neglect to
execute or cause to be executed such summons upon the appellee be-
fore the second court after praying an appeal, the Judgment of the
Justice shall stand confirmed.
Sec. 18. Be it etc. that it shall be the duty of the justice who
gave the judgment to lodge with the clerk at or before the next court
any papers produced and read on the trial before him. and if no
papers to certify the same to the clerk, noting thereon all the costs.
The clerk shall docket the cause in order, The court shall proceed and
determine the appeal in a summary way at their next court and
give such judgment as to them shall seem Just with respect to the
costs as well as the debt, but may grant a continuance if they deem it
right to the next court, but not longer. And in all appeals from the
Judgment of a Justice or Justices of the peace the party shall have
the benefit of all legal testimony that was before the justice of the
peace who rendered the judgment, or that might have been lawfully
admitted by said justice in the trial before him
Sec. 19. Be it etc. That the said county courts shall have power
to issue all process of every description that may be necessary to the
execution of the powers with which they are or may be invested. All
officers who were bound to obey the judgments or orders or proceed-
ings of the courts of common pleas in those cases in which the Juris-
diction of those courts of common pleas in by this law transferred to
the county courts, shall be equally subject to the authority of the
county courts, and be bound to perform the same duties in regard to
them — in like manner as if there had been no change in those courts
except as to the name only.
Sec. 20. Be it etc. That the county courts when acting in their
judicial capacity shall have the same power to furnish contempts of
their authority as the superme court does or may possess, and all
Judgments given by said courts upon appeal shall be final.
This law shall take effect from and after the passage thereof.
Risdon Moore
Speaker of the House of Representatives
Pierre Menard
President of The Councell
Approved Dec 24. 1814
Ninian Edwards
laws or 1814 169
An Act supplemental to an act entitled "An act concerning
County Courts.
Whereas it is advisable to remove all doubts that may arise as to
the powers vested in the county courts, and the Judges and clerks
thereof
Be it enacted by the Legislative Council and house of Representa-
tives, and it is hereby enacted by the authority of the same, That the
county courts established by the act to which this is a supplement,
and the Judges of said courts shall possess and exercise, all the Juris-
diction and perform all the duties heretofore vested in or required
of the courts of common pleas or the Judges thereof except such as
have been transfered to the supreme court or the Judges thereof.
That the clerks to be appointed for the said county courts shall
perform all the duties heretofore vested in or required of the clerks
of common pleas, so far as the same duties relate to the powers and
jurisdiction of said county courts and all other duties that have not
been transfered either expressly or by necessary complication to the
clerks of the supreme courts but in neither of the latter cases shall the
said clerks of county courts, have any power whatever.
Risdon Moore
Speaker of the House of Representatives
Pierre Menard
president of The Councel
Approved Dec 24. 1814
Ninian Edwards
An Act Regulating the fees of Justices of the peace, constables
& Recorders
Be it enacted by the legislative council & house of Representa-
tives, & it is hereby enacted by the authority of the same, that the
following shall be the standing fees to govern the Justices of the
peace, constables and recorders of this territory.
$ cts
For every summons or Warrant
Each subpoena
Each continuance
Swearing each Witness on trial
Every deposition in full length
Entering up Judgment
12i/2
12y2
ey4
6%
25
25
170
ILLINOIS HISTORICAL COLLECTIONS
For every Execution
Entering Security when required
Seire facias to be served on security, when execution is
returned "nothing to be found"
Each notification, when the cause is to be left to referees
Entering award and final Judgment thereon
Taking Deposition of each witness on Dedimus from an-
other Territory or county
Returning Dedimus, Certificate and sealing and direct-
ing same
Entering appeal from Judgment of Justices
Bond on appeal
Copy of the proceedings on Justices Judgment
For taking acknowledgment on a deed or other Instru-
ment of Writing (or proving the same for each person
named therein
On attechment for taking deposition
Granting Attechment, taking Bond & Security
Entering up Judgment on the same
Putting the same on Docket
On forcible entry and detainer for each precept
Administering each oath thereon
To each Justice of the peace on trial pr day
Copy of proceedings & making out the same
In Criminal cases.
Taking each deposition at full length
Each Warrant
Each Recognizance
Each Mitimus
Order for those who misbehave to be whipped
Order to remove a pauper
Order to relieve a pauper
Constables Fees.
For serving & returning each Warrant
Serving summons & returning the same
Serving Execution & returning the same
Advertising property taken in Execution for sale
Commission on Sales under Six Dollars
cts
25
i2y2
25
25
371/2
25
37%
25
371/2
25
25
18%
75
37%
12%
37i/o
I21/2
.50
.50
25
25
371/2
371/2
371/2
50
371/2
371/2
311/1
371/2
I21/0
25
LAWS OF 1814
171
$ cts
six per cent
121/a
Commission on Sales above Six Dollars
Attending on each trial
Milleage from the Justices dwelling 5 cents per mile
For each days attendance on the general Court or Court
of common pleas
In Criminal Cases.
For serving a warrant on each person therein named
Attending an examination
For serving subpoena on each person therein named
For returning each precept
Taking each person to Jail
Mileage from the place of commitment per Mile
Mileage from the Justice of the peace on all criminal
cases the same
Whipping each person for misdemeanor by order of an}^
court or Justice of the peace
Recorders Fees, etc.
Recording Deeds Mortgages & all other Instruments of
writing per 100 words
For all copies of Records per 100 words
For every search for each year back
For certificate of any writing recorded
Every Seal when required
Be it further enacted that all Laws and parts of Laws that come
within purview of this act shall be and the same are hereby repealed.
This Law shall be in force from and after the first day of May next.
Risdon Moore
Speaker of the House of Representatives
Pierre Menard
president of the Councel
Approved Dec. 24. 1814
Ninian Edwards
1.00
50
25
25
6%
25
5
50
16
i2y2
61/!
50
25
An Act to amend an act entitled an "act to regulate proceedings in
civil cases and for other purposes.
Sec. 1. Be it enacted by the Legislative council and house of
Representatives and it is hereby enacted by the authority of the same,
That so much of the act, "entitled an act to regulate proceedings in
172 ILLINOIS HISTORICAL COLLECTIONS
civil cases and for other purposes ' ' as permits either party to continue
the suit at the first court without showing cause shall be and the same
is hereby repealed and all causes shall be tried at the first court unless
good cause shall be shewed for a continuance.
Sec. 2. The clerks in making out the court docket shall arrange
and apportion the suits at law as heretofore, but shall put all the
chancery causes at the end of the common Law issues in the order
they were set for hearing and the courts shall proceed to take up the
business in order as it stands upon the docket, and go through the
same Provided always that any chancery cause may be taken up by
consent of parties, when the court may have leisure to hear the same
any law, custom or usage to the contrary notwithstanding.
Sec. 3. That in every motion for the continuance of a 'cause
founded upon the abscence of a witness or witnesses the party making
the same shall exhibit and file a written affidavit in which he or she
shall distinctly set forth what he or she expects to prove by said
absent witness or witnesses, and if the court should not think the
facts so set forth in such affidavit material or rellevant to the point
in issue or if the adverse party will admit the same the cause shall
not be continued upon the grounds or for the causes set forth in said
affidavit. Provided always that nothing herein shall be construed
to dispense with the duty of any party to have used due diligence
in procuring his or her testimony.
Risdon Moore
Speaker of the House of Representatives
Pierre Menard
president of The Councel
Approved Dec 24. 1814
Ninian Edwards
An Act appointing a County Treasurer, and defining the duties of
collectors and Treasurers.
Sec. 1. Be it enacted by the Legislative Council and house of
Representatives of the Illinois Territory, and it is hereby enacted
by the authority of the same. That so much of the law of this Terri-
tory as makes the sheriffs of the respective counties, Treasurers there-
of, be and the same is hereby repealed.
Sec. 2. Be it enacted by the authority aforesaid. That there shall
be appointed by the Governor one fit person in each county to be
laws or 1814 173
treasurer thereof, who shall give bond and sufficient security, to be
approved of by the county court of his county as the law directs in
the penal sum of two thousand dollars for the faithful performance of
his duties and he shall be under the same rules and regulations, and
exposed to the same fines and forfeitures as the sheriffs as treasurers
were for any failure of duty of his said office. And that he shall
perform all the duties required by the different laws of this Territory
of county treasurer And the said Treasurer shall receive as a. -compen-
sation for his services five per cent for all monies that he may as
treasurer receive and pay out ; and it shall be his duty to pay all
sums of money as the law directs on proper vouchers being exhibited
to him due by his county. And it shall be the duty of the Governor
to appoint a treasurer in each county as soon as may be after the
date hereof
Sec. 3. And be it further enacted that it shall be the duty of
said Treasurer to settle with the county court of his county at each
session thereof annually for all monies he shall before said court at
any time have received, and paid out with his vouchers for the same.
And it shall be the duty of the district or Territorial attorney to be
present at said settlement with the Treasurer once in each year, and
he shall aid the court in deciding on the validity of the vouchers pre-
sented by him in the said settlement and all payments shall at all times
be accompanied with a list of the persons names to whom payment
is made the amount and what for, and the attorney so attending
shall receive out of each county Treasury he attends the sum of ten
dollars therefore annually.
Sec. 4. And be it further enacted that it shall be the duty of
each sheriff of the respective counties to settle with and pay into
the Treasury of their respective counties at each and every county
court, yearly and every year from the date thereof all arrearages of
his county levy, and all other monies belonging to the county Treas-
urer under the penalty of one thousand dollars for refusing or failing
to comply with the provisions of this section to be recovered for the
use of the county in any court of record having Jurisdiction thereof.
It shall be the duty of the Treasurer where he finds on the Books of
the court of his county that the sheriff has not paid the full amount
of the tax for any preceding year he shall inform the prosecuting
attorney thereof whose duty it shall be to institute an action against
any of said sheriffs for the recovery of the sum apparently due to
174 ILLINOIS HISTORICAL COLLECTIONS
the county Treasury. But he shall be allowed a deduction out of
the amount of the county levy, for the real delinquencies and in-
solvencies, and for no more, in all payments to the Treasurer, the
sheriff shall be obliged to exhibit a list of the persons names from
whom he received the same with the respective amounts to each name
annexed.
Sec. 5 Be it further enacted that it shall be the duty of the sheriff
of the respective counties, to put up on the most public places of the
court house of his county on the first day of the court next after or
at which he makes the last settlement, for any year as directed by
this law, a list of all the names of the delinquents and insolvents for
which he claims a deduction on his said settlement with the county
treasurer, and should said sheriff return untruly any name or names
for any person or persons as delinquent or insolvents for every such
name so returned, he shall forfeit and pay to the use of the said
county of which he is sheriff the sum of twenty-five dollars in any
court having Jurisdiction thereof.
Sec. 6. Be it further enacted that it shall be the duty of each
treasurer to put upon the door of the court house of his county a list
of the names and of the amount given him in payment by the sheriff
of his county for the years county revenue and levy to the end, that
each one may see if the sheriff has accounted with the Treasurer for
the exact sum he has received from each individual and the said
Treasurer shall copy the same in a fair legible hand in alphabetical
order and receive therefor out of the county Treasury the sum of ten
dollars.
Sec. 7. Be it further enacted that it shall be the duty of the
clerk of the county court for each county immediately after the assess-
ment made of the county levy and revenue to put up at the court
house door of the county, the assessment of the rates of all property
made by the court to the end that the public may know the sum that
they are bound to pay to the collector of the county. And the
respective clerks shall receive for their copies of said list the sum
of two dollars out of the county Treasury.
Sec. 8. Be it further enacted that it shall be the duty of the
Territorial attorney to prosecute for each county for all failures of
duty arising under this act and for every prosecution had under the
act against any sheriff or Treasurer there shall for his fee be taxed in
a bill of costs the same sum that is or may be allowed on indictments
laws of 1814 175
or presentments.
Sec. 9. Be it further enacted That the respective treasurers of
the counties shall at the first county court in each county make out
and deliver to each sheriff a number of Blanks certificates of every
description belonging to the county revenue of the same nature that
the sheriffs were by law authorised to grant and take receipts for the
same, from the sheriffs who shall be entitled to a discount in his settle-
ment with the Treasurer on all he may return of such Blanks.
Sec. 10. Be it further enacted that the Treasurers to be ap-
pointed under and by virtue of this act shall be entitled to the sum of
ten dollars annually as a compensation for Books and stationary
necessary to the said office
Sec. 11. Be it further enacted that the said Treasurers shall in
their respective counties hereafter perform all the duties required
by law of commissioners for taking in a list of taxable property and
that in future no commissioners shall be appointed for that purpose,
But such Treasurer shall have the same compensation therefor, as
county commissioners have hitherto had.
Risdon Moore
Speaker of the House of Representatives
Pierre Menard
president of the Councel
Approved Dec 24. 1814
Ninian Edwards
An Act to amend an act entitled "An act for levying and collecting
a Tax on land
Sec. 1. Be it enacted by the Legislative council and house of Rep-
resentatives and it is hereby enacted by the authority of the same.
That it shall be the duty of the Territorial auditor, and he is hereby
authorised and empowered to apply for and procure from the proper
offices, an Abstract of all the entries and locations and purchases made
by individuals from the U. States of lands in the several counties in
this Territory, noting where and on what creeks or water courses in
what range Township section and quarter section, such entried and
locations and purchases have been made with the names of the per-
sons for whom entered and located and by whom purchased from the
United States, and it shall be the duty of the Auditor to transmit
the said abstracts as is directed by the act to which this is a supplement
176 ILLINOIS HISTORICAL COLLECTIONS
Sec. 2. Be it further enacted. That all the aforesaid lands shall
be taxed as follows (viz.). If located entered or purchased in the
Mississippi, Ohio or Wabash Bottoms the same shall pay at the rate
of one dollar per hundred acres all other located, entered or purchased
as aforesaid in any other place except the Mississippi, Ohio & Wabash
bottoms, shall pay at the rate of seventy-five cents per hundred acres,
and all unlocated confirmed claims, shall pay at the rate of thirty-
seven and a half cents per hundred acres.
Sec. 3. Be it further enacted. That the commissioners to be
appointed for the respective counties, shall not enter upon the duties
of his office, before the first day of the month of July, yearly and
every year and it shall be their duty to finish taking in the lists
aforesaid by the first day of the month of August yearly and every
year, and within six days thereafter shall make return of the same to
the clerk of the county court of his county, who shall make out two
fair copies of the same one of which he shall deliver to the sheriff
and the other he shall transmit to the auditor of public accounts
within ten days thereafter, retaining the original" in his office, which
original or copies thereof shall be admitted as Testimony in an}^ court
of Record within this Territory
Sec. 4. Be it further enacted, That each sheriff shall have power
and it shall be his duty to demand of every inhabitant of his county,
the amount of tax due by him, her or them for their lands, either
personally or by leaving a notice at his or their usual or last place
of residence on or before, the first day of the month of October,
yearly and every year.
Sec. 5. Be it further enacted that the sheriff of each county re-
spectively, shall on or before the first day of the month of December,
yearly and every year pay to the Territorial Treasurer the whole
amount of the taxed collected by them on land, which shall go to
defray the territorial expenses and the said sheriff shall settle with
the auditor for all delinquences and for all lands which could not
sell, who is authorised to give them credit for the same.
Sec. 6. Be it further enacted That the commissioners to be ap-
pointed under the act to which this is an amendment, may advertise
in the respective Townships of their counties if their be any, that he
will on a certain day not less than ten days thereafter attend at some
place in each Township if there be any otherwise at some place that
he may suppose convenient to the inhabitants, for the purpose of
laws of 1814 177
receiving from the inhabitants of his county their lists of lands ac-
cording to law, and such persons are hereby required to attend at
such places as said Commissioner may appoint as aforesaid —
Sec. 7. That in all cases where-ever any person may have any
doubts as to the original claimant of the land which he is required to
list for taxation, such person shall in lieu thereof be authorised to
state the number of the survey under which such person claims.
Risdon Moore
Speaker of the House of Representatives
Pierre Menard
Approved Dec 24. 1814 president of the Councill
Ninian Edwards
An Act to promote retaliation upon hostile Indians
Whereas the hostile incursions of the savages and their indis-
criminate slaughters of men women and children, have been often
repeated and under circumstances aggravating the honor of such
sanguinary scenes, and producing great affliction and distress among
the inhabitants of this Territory.
And whereas nothing is so well calculated to check the progress
or prevent the repetition of those attacks on the part of those blood
thirsty monsters as successful pursuit and retaliation upon them to
effect which it becomes expedient to offer sufficient encouragement to
the bravery and enterprize of our fellow-citizens, and those other
persons now engaged or that hereafter may be engaged in the defence
of our frontiers. Therefore
Sec. 1. Be it enacted by the Legislative Council and house of
Representatives and it is hereby enacted by the authority of the same.
That if any indian or indians shall hereafter make an incursion into
our settlements with hostile intentions and shall commit any murder
or depredation, and any citizen or citizens or rangers or other persons
engaged in the defence of our frontier shall pursue and overtake and
take prisoner or rpisoners or kill any indian or indians that may
have so offended such person or persons shall if they be citizens merely
receive a reward for each Indian so taken or Killed the sum of fifty
dollars and if they be rangers or other persons actually at the time
engaged in the defence of any frontier such person or persons shall
be entitled to a reward of twenty five dollars.
Sec. 2. Be it further enacted that if any party of citizens having
178 ILLINOIS HISTORICAL COLLECTIONS
first obtained permission of the commanding* officer on our frontier
to go into the Territory of any hostile indians shall perform any such
tour and shall kill any indian warrior, or take prisoner any squaw or
child in the country of said hostile Indians such person shall be en-
titled to a reward of one hundred dollars for each indian warrior
Killed and such squaw or child taken prisoner
Sec. 3. Be it further enacted that if any party of Rangers or
other persons now engaged or that may hereafter be engaged in the
defence of our frontier, not exceeding fifteen in number shall with
the leave of the officer make a voluntary incursion into the country
of any hostile indians and shall Kill any indian warrior or warriors,
or take and bring away any squaw or squaws child or children, in
and from the country of said Indians such persons as aforesaid shall
be entitled to a reward of fifty dollars, for each indian warrior
Killed as aforesaid, and each squaw or child so taken prisoner
Sec. 4. Be it further enacted, that proof of any of the before
mentioned facts to entitle any person or persons to the reward given
by this law, shall be made before the Judges of any county court, or
any two of said Judges who upon full proof being made before them,
shall certify the same to the auditor of public accounts who shall
audit the amount due to such person or persons and give to him or
them a warrant on the Treasurer for the amount thereof which shall
be paid out of any money in the public Treasury. This act shall be
in force from and after the passage thereof.
Risdon Moore
Speaker of the House of Representatives
Pierre Menard
Approved Dec 24. 1814 president of The Counce]
Ninian Edwards
An Act providing for the payment of the expenses of revising and
printing the laws of Illinois Territory
Whereas this Legislature have contracted with Nathaniel Pope
Esq for revising the laws of this Territory making an index to the
same, and superintending the printing thereof, and whereas also they
have contracted witli Matthew Duncan Esq for the aforesaid printing
Be it enacted by the Legislative Council and house of Representa-
tives, and it is hereby enacted by the authority of the same that as
soon as the above mentioned work shall be done and performed it shall
laws or 1814 • 179
be the duty of the auditor to issue his warrant to the aforesaid
Nathaniel Pope Esq for three hundred dollars and the said auditor
shall settle liquidate and audit the account of said Matthew Duncan
Esq. according* to his bond given to the Governor of the Territory,
and give to him a warrant for the amount of the same both of which
warrants .shall be paid out of any money in the Treasury.
Risdon Moore
Speaker of the House of Representatives
Pierre Menard
pr of the Councill
Approved Dec 24. 1814
Ninian Edwards
An Act to moke appropriations for the ensuring year
and other purposes
Sec. 1. Be it enacted by the Legislative Council and house of
Representatives of the Illinois Territory, That the sum of one hun-
dred dollars is hereby appropriated to defray contingent expences
for the year one thousand eight hundred and fifteen and that all
monies which may be received into the Territorial treasury during
the year 1815 except as above appropriated for contingent expences
shall be a general fund for all monies allowed by law. The said sum
of one hundred dollars allowed for contingent expences shall be sub-
ject to the orders of the Governor on the auditor for the payment of
express and allowances which may be necessary and unforseen, and
unprovided for by the Legislature and for distributing the laws. A
statement of which shall be laid by the Governor and Auditor before
the Legislature at its next session.
Sec. 2. Be it further enacted that there shall be paid out of the
Territorial Treasury on the warrant of the auditor to each member
of the Legislative Council and house of Representatives the sum of
three dollars per day for each days atetndance of the present session
of the Legislature and at the rate of three dollars for every twenty
miles travel to and from the seat of the Government to their places
of residence by the most usual road. To the secretary of the Legis-
lative Council and the clerk of the house of Representatives for their
services at the present session the sum of three dollars and fifty cents
per day each, and to the enrolling and engrossing clerk the sum of
three dollars and fifty cents per day and to the door keeper of both
180 ILLINOIS HISTORICAL COLLECTIONS
houses the sum of two dollars per day for every days attendance at
the present session.
Sec. 3. Be it further enacted that the compensation which may
be due to the members and officers of the Legislative Council shall
be certified by the secretary thereof and the secretary's by the president
thereof and those that may be due to the members and officers of the
House of Representatives including the engrossing and Enrolling
Clerk and door Keeper shall be certified by the clerk thereof, and the
clerk's by the speaker, which certificate shall be sufficient evidence to
the auditor of the claim, and he shall thereupon issue to such person
so entitled a warrant or warrants on the Territorial Treasury for the
amount of his certificate which warrant shall bear interest from the
date thereof until paid at the Treasury.
Sec. 4. Be it further enacted that the following shall continue
for one year commencing the first day of January next to be the sala-
ries of certain officers as follows (to wit) For the two attorneys
prosecuting for the Territory one hundred and fifty dollars each to the
auditor of public accounts two hundred and fifty dollars, for the
territorial Treasurer, one hundred & fifty dollars. For the adjutant
General one hundred dollars.
Sec. 5. Be it further enacted that there shall be allowed and
paid out of the general fund to the following persons the fol-
lowing sums of money, (viz) To James Gilbreath for fire wood
and house rent one dollar and twenty-five cents per day. During
the present session. To William Arundel for stationary furnished at the
the present session sixteen dollars & fifty cents, to Hugh H. Maxwell
for two candlesticks two dollars. To Matthew Duncan for printing
the Governors Message and answer thereto thirty dollars To Thomas
Stuart for articles furnished at this session two dollras and eighty
and a fourth cents. To Wm Mears as attorney General in addition to
his salary for Eighteen hundred and fourteen fifty dollars. To Hugh
H Maxwell for sundry Stationary twenty three dollars and forty two
and a half cents. To Matthew Duncan for Public printing on,e hun-
dred and seventy seven dollars & twenty five cents For postage paid
for the Territory for Governor Edwards — three dollars & fifty cents.
Risdon Moore
Speaker of the House of Representatives
a i t^ fti 1f)1, Pierre Menard
Approved Dec 24. Ibl4
XT _ president of The Council
Ninian Edwards
LAWS OF 1814 181
A Resolution for depositing and distributing the Laws of this
Territory.
Resolved by the Legislative Council and House of Representatives
of the Illinois Territory, that the Laws of this Territory that now
are or that may hereafter be printed shall be deposited in the office
of the Secretary of this Territory, & be by him distributed into the
respective counties as is or may be directed by law.
Risdon Moore
Speaker of the House of Representatives
Approved Dec. 14. 1814 Pierre Menard
Ninian Edwards president if the Councel
Whereas it is necessary that the laws of this Territory should be
printed with all possible dispatch for the information of the good
citizens thereof
And whereas a revision of the same would greatly lessen the ex-
pense of the publication thereof, and marginal notes and a good index
thereto would be desirable and convenient, Therefore be it Resolved
by the Legislative council and house of Representatives that it is
expedient to procure some person to revise and prepare said laws for
publication and to deliver the same to the public printer as fast as he
can print them, and also to prepare an index and marginal notes to
be annexed thereto.
Risdon Moore
Speaker of the House of Representatives
Pierre Menard
Approved Dec 24, 1814 president of The Councel
Resolved by the Legislative Council and house of Representatives
That the Journals of each house with all. documents connected there-
with shall be deposited in the office of the Secretary of the Territory
who shall be authorized to purchase a press to Keep the same in a
secure manner for the amount of which the auditor shall issue a
warrant which shall be paid by the Treasurer and all papers belonging
to him as Secretary of the Territory.
Risdon Moore
Speaker of the House of Representatives
Approved Dec 24. 1814 Pierre Menard
Ninian Edwards President of the Councel
LAWS
PASSED
BY
THE LEGISLATIVE COUNCIL,
AND
HOUSE OF REPRESENTATIVES,
OF
ILLINOIS TERRITORY,
AT
THEIR FOURTH SESSION,
HELD
AT KASKASKIA,
1815- '16.
KASKASKIA :
PRINTED BY
MATTHEW DUNCAN
PRINTER TO THE TERRITORY.
1816.
[Reprinted from the first edition.]
TABLE OF CONTENTS.
Page
An Act for the Division of Gallatin County 185
To Authorise the County Court of Gallatin County to Grant an Addi-
tional Ferry at Shawnoetown 187
For the Relief of Persons Who Have Violated the Law Respecting
Dueling 187
Directing the Mode of Changing Venue 188
To Amend an Act Entitled "An Act to Regulate the Disposition of
Water Crafts, Found, Gone or Going Adrift, and of Estray Animals" 189
Reforming Certain Rules of Legal Constitution 191
To Encourage the Killing of Wolves 191
To Amend the Law Now in Ferce, Directing the Mode of Summonsing and
Empanneling Grand Juries 192
Providing for the Collection of Land Tax in the Counties of Gallatin
and Edwards for the Year 1815 193
To Provide a Compensation for the Sheriff in the Court of Appeals. . . 194
To Amend the Act Concerning the Militia, Passed the 14th Day of
December, 1814 195
For Forming a New County Out of Randolph and St. Clair Counties. . . 195
For the Relief of Hezekiah West Treasurer of the County of Johnson 193
Increasing the Jurisdiction of the County Court 199
For the Relief of Julian Bart 203
Explaining the Jurisdiction of the Circuit Courts and for Other Pur-
poses 203
To Amend an Act Entitled "An Act for Levying and Collecting a Tax
on Billiard Tables" 204
Supplementary to an Act Entitled "An Act Establishing Ferries" 205
Authorising the Clerks of the Several County Courts to Administer
Oaths to Officers Commissioned by the Governor 205
To Amend an Act Entitled "An Act Establishing Courts for the Trial
of Small Causes" 206
Concerning the Court of Appeals for Illinois Territory and the Several
Circuit Courts and for Other Purposes 207
Amendatory to the Law Concerning Duncards and Quakers 211
To Compel the Citizens of this Territory to Afford Legal Assistance
to Certain Officers of this Territory in the Due Execution of Their
Offices 211
Supplementary to the Several Laws for Levying and Collecting a Tax
on Land 212
To Erect a New County Out of the Counties of Randolph and Johnson 215
Concerning the Recording of Proceedings in Law Suits 217
To Erect a New County Out of the Counties of Gallatin and Johnson 217
Concerning the Title Papers to Land Deposited with the Receiver of
Public Monies for the District of Kaskaskia 220
To Authorise the Governor to Issue Commissions to All Officers Civil
and Military in the New Counties, Erected at the Present Session
of the Legislature 220
Concerning the Duties and Fees of the Clerk of the Court of Appeals
for Illinois Territory 221
Concerning District Attorneys, on Page Marked 71*, so by Mistake . . . 221
To Amend an Act Entitled "An Act to Amend the Militia Law of this
Territory Marked 72*, so by Mistake 222
Making Appropriations for the Year 1816, and for Other Purposes. . . . 222
Declaring to Whom the Redemption Money for Lands Sold for Taxes
Shall be Paid . . : 224
To Suppress the Counterfeiting of Bank Notes 225
Resolutions .- 229
*This refers to the paging of the original edition.
LAWS OF ILLINOIS TERRITORY,
Enacted in 1815 & '16.
An Act for the division of Gallatin County.
Sec. 1. Be it enacted by the Legislative Council and House of
Representatives of the Illinois Territory, and it is hereby enacted by
the authority of the same, That all that tract of Country within the
following boundaries, (to wit,) beginning at the mouth of the little
Wabash running up the same to Joseph Boon's mill, thence due West
to the third principal meredian, thence North to the South Best corner
of Edwards County, thence with Edwards County line East to the
Big Wabash, thence down the same to the beginning ; shall consti-
tute a separate County to be called White ; and for the purpose of
fixing the permanent seat of Justice for the said county the following
persons be appointed commissioners (to wit,) James Ratliff, Ben-
jamin White, Samuel Hay, Thomas E. Craig and Stephen Hog, which
said commissioners or a majority of them being duly sworn before
some Judge or Justice, of the Peace in this Territory to faithfully
take into view the situation of the settlement, the geography of the
county ; the convenience of the people and the eligibility of the place,
shall meet on the first Monday in February next at the house of
Lowny Hay on the little Wabash and proceed to examine and deter-
mine on the place for the permanent seat of Justice and designate
the same ; provided the proprietor or proprietors of the land shall
give to the said county for the purpose of erecting public buildings
a quantity of land at the said place not less than twenty acres to be
laid off into lots and sold for the above purpose; But should the said
proprietor or proprietors refuse or neglect to make the donation
aforesaid, then and in that case it shall be the duty of the commis-
sioners to fix upon some other place for the seat of Justice as con-
venient as may be to the different settlements in said county, which
place fixed and determined on the said commissioners shall certify
under their hands and seals and return the same to the next county
court in the county aforesaid, and as compensation for their services
they shall each be allowed two dollars for every day they may be
necessarily employed in fixing the aforesaid seat of Justice to be
paid out of the county levy, which said court shall cause an entry
thereof to be made on their records; and untill the public buildings
185
186 ILLINOIS HISTORICAL COLLECTIONS
may be fixed the courts shall be holden at the house of Lowny Hay
on the little "Wabash.
Sec. 2. Be it further enacted, That it shall and may be lawful
for the Governor of this territory immediately to constitute the
militia within the county thus laid off into one regiment, the com-
manding officer of which shall have the same power to order out
the militia as is now possessed by the Lieutenant Colonel of the re-
spective regiments.
Sec. 3. And be it further enacted, That the said county of White
is hereby allowed one representative in the House of representatives
of this territory, who shall be elected agreeably to law and be entitled
to all the immunities powers and privileges prescribed by law to mem-
bers of the House of Representatives.
Sec. 4. Be it further enacted, That whereas the Counties of
Gallatin Edwards and White compose one destrict for the purpose
of electing a member of Legislative Council, the citizens of the said
county entitled to vote may at any election for a member of the Legis-
lative Council to represent said district proceed to vote for such mem-
ber, and it shall moreover be the duty of the Sheriff of the said county
of White within ten days after the close of said election to attend
at the court house of the county of Gallatin with a statement of the
votes given in said county of White to compare the polls of the respec-
tive counties and to join with the sheriff of Gallatin and Edwards
counties in making out and delivering to the person duly elected a
certificate thereof, and for a failure thereof he shall forfeit and pay
the same penalties and for the same purposes that the sheriffs of
Gallatin and Edwards are subject.
Sec. 5. Be it further enacted, That the citizens of the said
county of White are hereby declared to be entitled in all respects to
the same right and privilege in the election of a Delegate to Congress
as well as of a member to the House of Representatives of the Terri-
tory that are allowed by law to the other counties of this territory,
and all elections are to be conducted at the same times and in the
same manner as is provided for other counties.
This act to be in force from and after the first day of February
next.
Risdon Moore
Speaker of the house of representatives,
Approved this 9th Deer. 1815 Pierre Menard
Ninian Edwards. President of the Council.
laws of 1815—1816 187
An Act to authorise the County Court of Gallatin County to grant
an additional Ferry at Shawnoetown.
Whereas it appears to this Legislature, That doubts have arisen,
whether the county court of Gallatin County are authorised, under
the present existing laws, to grant Ferries at Shawnoetown, in conse-
quence of the margin of the Ohio being according to the plan of said
said Town, public ground and unappropriated to any individual.
Be it therefore enacted by the Legislative Council and House of
Representatives ; and it is hereby enacted by the authority of the same ;
That the county court of Gallatin be and they are hereby authorised to
grant one more ferry at the above place, if they conceive the public
good requires it, (the applicant complying with the law in all respects
as are required by other applicants for Ferries in this territory.)
Risdon Moore
Speaker of the House of Representatives,
Pierre Menard
President of the Council,
Approved Deer. 18, 1815,
Ninian Edwards.
An Act for the relief of persons, that have violated the law
respecting Dueling.
Whereas the law entitled "An act to suppress duelling was never
published in this territory, untill the publication of the late revision
of the laws of this territory, and many therefore remaineded ignorant
of the law, whereby sundry violations of it have taken place, and
the violators deprived of their eligibility to hold any office in the
territory according to the operation thereof : For remedy whereof.
Be it enacted by the Legislative Council & House of Representa-
tives, and it is hereby enacted by the authority of the same ; That when
any person shall hereafter received any appointment to any office,
either civil or military, in this territory. That the oath prescribed
in the act entitled "An act to suppress dueling" shall apply to the
time of the passage of this act, and not to that, to which this is a
supplement, and that no violation of said law which happened previ-
ous to the passage of this act shall work a disqualification. That
188 ILLINOIS HISTORICAL COLLECTIONS
this act to take effect and be in force from and after the paassage
thereof.
Rjsdon Moore
Speaker of the House of Representatives,
Piere Menard
President of the Council,
Approved Deer. 18, 1815.
Ninian Edwards.
An Act directing the mode of changing the venue.
Sec. 1. Be it enacted by the Legislative Council and House of
Representatives of the Territory of Illinois and it is hereby enacted
by the authority of the same : That all actions now depending' or
hereafter may be instituted in any court of Records within this Terri-
tory, where either of the parties in the suit shall fear, that he, she or
they, will not receive a far trial in the court, where it is pending, owing
to the interest or prejudice of the Judge or Judges of the court,
where the suit is pending, or that the sheriff or coroner is interested
or prejudiced, or that the adversary of the person has undue influ-
ence over the minds of the citizens of the county, where the suit is
pending, or that the person applying is so unfortunate, that he does
not expect a fair trial, or that his defense is odious (tho' legal,) it
shall be lawful for the said party to petition the Judge of the court
aforesaid, where, the cause or action may be pending, for a change
of venue for the said cause, distinctly setting forth the cause of bar,
that he will not receive a fair trial, and supported by his or her affi-
davit, on which the Judge of the court shall, under his hand, award
a change of the vene, and order the Clerk of the court, where the
suit is depending, to send forward the papers, in the suit, by some fit
person, whom the Clerk shall employ, to such Court, having juris-
diction in similar cases, as the Judge may direct, and the Clerk of
such Court shall receive them, and give a receipt for them, and docket
the suit in order, and the Court shall have full power and jurisdic-
tion to award suboenaes for witnesses, to inforce their attendance, to
grant commissions for taking depositions, to hear and determine the
said controversy, to award execution and to do every thing relative
thereto which the Court, from whence the cause was removed, might
or could have done.
Sec. 2. Be it further enacted, That any person convicted of taking
laws of 1815—1816 189
a false oath, when swearing to the truth of the allegation, shall be
perjured and suffer accordingly : Provided, that no Judge, Sheriff
or Coroner, charged as aforesaid, or adversary in the cause, shall be
admitted as a witness against the petitioner.
Sec. 3. Be it further enacted, That the expence attending the
record of such suit shall be paid by the petitioner, and taxed in the
bill of costs at the determination of the suit, should he succeed, the
person, who conveys the papers shall have six cents for every mile
that he shall necessarily travel in going to and returning from the
Clerks Office, which shall be paid to the Clerk before the papers leave
the Office.
Sec. 4. Be it further enacted ; That the Clerk shall be answer-
able for the fidelity of the person, he employes to transport the papers
from his office, but not for unavoidable accidents.
Sec. 5. And be it further enacted; That the venue in no case
shall be changed unless the petitioner deposits the order of the Judge
together with the petition and affidavit aforesaid, which shall be
carefully preserved by the Clerk and the necessary expences attend-
ing the removal, with the Clerk having custod^y of the papers at least
thirty days before the court, to which the said suit shall be set for
trial. This act to commence and be in force from and after the pas-
sage thereof.
Risdon Moore
Speaker of the House of Representatives
Approved, Dec. 21st 1815, _ . , ' jn ~
^T ^ President of the Council
Ninian Edwards.
An Act to amend an act entitled "An act to regulate the disposition
of water crafts found gone or going adrift and of estray animals."
Sec. 1. Be it enacted by the Legislative Council and House of
Representative of the Illinois Territory and it is hereby enacted by
the authority of the same ; That if the owner or owners of any stray
Horse, Mare, Colt, Mule or Ass or any neat cattle taken up under the
provisions of the aforesaid receited act shall not appear within two
years after the publication required in the said act, and prove his,
her or their property then and in that case the property shall be
vested in the taker up ; provided nevertheless, that nothing in this act
shall be so construed as to prevent the lawful owneror owners of any
estray or estrays as aforesaid from proving his, her or their property
190 ILLINOIS HISTORICAL COLLECTIONS
at any time after the expiration of the said two years but it shall be
at the option of the taker up either to deliver the estray or pay the
amount of the appraisment after deducting the necessary expence of
taking up and also reasonable charges for keeping such estray or
estrays ; But if such taker up shall make use of any estray horse or
horses, mares or mules by working him or them, in such case he shall
not be entitled to any pay for keeping any such estray.
Sec. 2. Be it further enacted ; That if any person or persons,
who shall hereafter take up any estray hog, sheep or goat, and do
therewith as the law requires, the property of such estray shall be
vested in the said taker up after the expiration of one year (if no
owners shall appear and prove their property within that time;) but
in case the owners of such stray shall appear and prove their prop-
erty after the expiration of one year, it shall be optional with the
taker up to deliver to the said owners the said estray, or pay the
amount of the appraisment thereof after paying the necessary ex-
pences.
Sec. 3. Be it further enacted, That any person taking up any
estray Horse, mare, mule or colt shall within two months after the
same is appraised, Provided, the owner shall not claim his property
during the said term of two months, transmit to the public printer of
this Territory a particular description of such estray or estrays, and
the appraisment thereof, together with the name of the County and
place of residence of said taker up, certified by the Clerk of the
County or Justice before whom such estray was appraised, to be adver-
tised three weeks in his paper, for which the said printer may demand
thirty seven and one half cents for the first insertion, and eighteen
and three fourth cents for every time afterwards, and when there
shall be two or more estrays in the same advertisment, such printer
shall not demand more than one half the sum for such additional
estray or estrays or each of them as is allowed for one.
Sec. 4. And be it further enacted ; That all and every part
of the aforesaid recited act coming within the perview of this act shall
be and the same is hereby repealed. This act to take effect from and
after the fifteenth day of February next.
Risdon Moore
Speaker of the House of Representatives,
A n t^ r>n -inir PlERRE MENARD,
Approved Deer. 30, 1815. _ . „ „ ' .,
,T „ President ot the Council.
Ninian Edwards.
laws of 1815—1816 191
An Act reforming certain rules of legal Constitution.
Be it enacted by the Legislative Council and House of Represen-
tatives of the Illinois Territory, and it is hereby enacted by the author-
ity of the same ; That whenever any law, which has repealed another,
shall be itself repealed, the former law shall not be revived without
express words to that effect ; This act to be in force from and after
the passage hereof.
Risdon Moore.
Speaker of the House of Representatives,
Pierre Menard,
President of the Council.
Approved Deer. 30, 1815,
Ninian Edwards.
An Act to encourage the killing of Wolves:
Whereas the raising of sheep ought to be encouraged by every
possible means, and as the distruction of Wolves would greatly tend
to so desirable an object.
Sec. 1. Be it therefore enacted by the Legislative Council and
House of Representatives of the Illinois Tearitory and it is hereby en-
acted by the authority of the same, That every person within this Ter-
ritory of the age of ten y ears and upwards, who shall kill any wolf
within six miles of any of the settlements in any County within this
Territory, shall receive fifty cents for every wolf, he shall kill, not ex-
ceeding six months old to be adjudged of by the Justice before whom
the head or scalp thereof, shall be taken, and for every wolf of the age
of six months and upwards, seventy five cents.
Sec. 2. Be it further enacted, That every person, claiming such
reward, shall produce the head or heads, scalp or scalps (if more than
one) with the ears entire, to a Justice of the Peace of the county,
where such wolf was killed, who shall administer to such person the
following oath, viz. I do solemnly swear or affirm (as the ease
may be) that the head or heads scalp or scalps (as the case may be)
now produced by me is the head or scalp of a wild wolf taken and
killed by me in the County of within six miles of some one
of the settlements within the same, to the best of my knowledge, and
that I have not wittingly or willingly spared the life of any bitch wolf,
in my power to kill, with a design of encreasing the breed so help
192 ILLINOIS HISTORICAL COLLECTIONS
me God." — and every Justice before he administers the foregoing
oath, shall first read it to the person wishing to receive the same, and
also the fourth section of this law; and every Justice, to whom such
head or scalp shall be produced, is hereb}r empowered and required to
administer the foregoing oath, and thereupon grant the killer a certifi-
cate, reciting his name, the number of heads or scalps, and whether
they be under or over six months old, the time and place they were
killed, which certificate being produced to the County Court, who are
hereby authorised and required to give such person an order on the
County Treasurer for the amount, to which he or they may be entitled.
Sec. 3. Be it further enacted ; That any Justice, having wolves
heads or scalps brought before him shall have the ears cut off in his
presence.
Sec. 4. Be it further enacted ; That if any person or persons shall
receive any reward contrary to the true intent and meaning of this act,
the person or persons, so offending, shall forfeit and pay any sum not
exceeding thirty dollars, to be recovered by action of debt, qui tarn
or by indictmet, for the use of the county, before any court having
Jurisdiction thereof.
Sec. 5. And be it further enacted, That all Justices of the peace
are hereby required to administer the oath and grant the certificate
herein mentioned, as above required as necessary and incidental to
his office, without fee. — This act shall commence and be in force from
and after the passage thereof.
Risdon Moore,
Speaker of the House of Representatives.
Pierre Menard.
President of the Council.
Approved, Deer. 30th 18.15.
Ninian Edwards.
An Act to amend the law now in force directing the mode of
summoning and impanelling grand Juries.
Be it enacted by the Legislative Council and house of Representa-
tives of the Illinois Territory and it is hereby enacted by the authority
of the same, That where the Grand Juries, which may be summoned
to attend any of the Circuit Courts in this Territory, shall be dis-
charged, and the said Court at any time thereafter, during the said
term, shall think it necessary to have empannelled another Grand
laws of 1815—1816 193
Jury, they shall have power and authority to do so, and for that pur-
pose shall enter an order on Record, directing the Sheriff to summon
a sufficient number of qualified persons to constitute a Grand Jury,
to meet and attend at such time as the Court shall direct, upon which
said order the Sheriff shall proceed immediately to summon a
Grand Jury to meet at the time directed by said order of Court, which
said Grand Jury, so summoned, being duly empannelled shall have all
the powers and be subject and governed by the same rules regulations
and laws as Grand Juries heretofore have been, and their proceed-
ings shall be as effectual and binding to all intents and purposes as
though clone by a Grand Jury summoned under the law now in force.
This act shall be in force from and after the passage thereof.
Risdon Moore,
Speaker of the House of Representatives,
Pierre Menard,
President of the Council.
Approved Deer. 30, 1815.
Ninian Edwards.
An Act providing for the collection of the land tax in the counties
Gallatin and Edwards for the year 1815.
Whereas it is represented to the General assembly that the county
commisioners list of land subject to taxation in the counties of Galla-
tin and Edwards were not put into the hands of the present sheriffs
of said counties within the time prescribed hj law, and that the same
has not been collected, for remedy whereof :
Sec. 1. Be it enacted by the Legislative Council and House of
Representatives of the Illinois Territory, and it is hereby enacted by
the authority of the same, That the sheriffs of Gallatin and Edwards
counties shall be, and they are hereby authorised and required to
collect the taxes on land in the said counties for the year 1815, from
the several persons charged therewith agreeably to their respective
county commissioners lists, and it shall be their duty to settle with
the Auditor and pay the proceeds in to the treasury on or before the
first day of May next, and in case of failure, they shall be subject to
be proceeded against by the Auditor in the same manner as if the
lists had been put into their hands within the time prescribed by law.
Sec. 2. Be it further enacted, That it shall be the duty of the
clerks of the county courts for the said counties of Gallatin and
194 ILLINOIS HISTORICAL COLLECTIONS
Edwards, to cause to be transmitted to the Auditors office on or before
the first day of March next a. transcript of the county commissioners
lists of land subject to taxation in their respective counties for the
year 1815, and they shall be allowed the same compensation for their
services, as if the same had been made within the time required by
law, and in case of their failure to comply with the requisitions of this
section, they shall incur the same penalties as are provided by law
for failing* to make out annual transcripts within the time prescribed
by law.
Sec. 3. Be it further enacted, That it shall be lawful for the
sheriff of Gallatin county to collect the arrearages of taxes in the
counties of White and Pope in the same manner as if the said White
and Pope counties had not been established. This act to be in force
from its passage.
Risdon Moore
Speaker of the House of Representatives
Pierre Menard
President of the Council.
Approved Jan. 4, 1816.
Ninian Edwards.
An Act to provide a compensation* for the Sheriff in the
Court of Appeals.
Be it enacted by the Legislative Council and House of Repre-
sentatives of the Illinois Territory, and it is hereby enacted by the
authority of the same ; That the sheriff attending the Court of Ap-
peals shall receive, for his attendance, the sum of one dollar for each
suit, that shall be decided in said court which shall be taxed in the
bill of costs, and paid by the unsuccessful party and recorved in the
same manner, that the clerks fees are, and he shall receive the same
fees for similar services, that the sheriffs receive for their services in
the circuit courts. This act to take effect from and after the passage
thereof.
Risdon Moore.
Speaker of the House of Representatives.
Pierre Menard
President of the Council.
Approved Jany. 4, 1816.
Ninian Edwards.
laws of 1815—1816 195
An Act to amend the "Act concerning the Militia," passed the 14,
day of December one thousand eight hundred and fourteen.
Whereas by the 'militia law many persons may be fined by courts
martial, who may be unable to attend and make their lawful excuse,
and much injury may result to the good people of this Territory for
remecty whereof.
Sec. 1 Be it enacted b}' the Legislative Council and House of
Representatives of the Illinois Territory, and it is hereby enacted by
the authority of the same, That hereafter whensoever any person or
persons shall have been thus grievously fined it shall be lawful for
those upon receiving notice from the sheriff of such fine having been
assessed to notify the sheriff of his or their intention to appear at the
next Battallion or Regimental court Martial and the sheriff is hereby
required to suspend the collection of said fine untill after the next
Battalion or regimental court Martial.
Sec. 2. Be it further enacted, That it shall be the duty of any
person appealing to any subsequent Court Martial for the remission
of a fine to obtain a certificate of such remission from the court
Martial remitting the same, which said certificate shall be received
by the sheriff in payment of the fine and the Auditor is
hereby required to credit the sheriff with the same upon the delivery
of the aforesaid certificate. This act to commence and be in force
from and after the passage thereof.
Risdon Moore
Speaker of the House of Representatives,
Pierre Menard
President of the Council,
Approved Jan. 4, 1816.
Ninian Edwards.
An Act for forming a new county out of Randolph and St. Clair
counties.
Sec. 1. Be it enacted by the Legislative Council and House of
Representatve of the Illinois Territory' and it is hereby enacted by
the authority of the same ; That all that part of the country within
the following bounds, viz, Beginning on the Mississippi River where
the base line, which is about three fourths of a mile below Judge
196 ILLINOIS HISTORICAL COLLECTIONS
Biggs' present residence strikes the said River, thence with the base
line nntill it strkes the first township line therefrom, thence S.E. to
the S.E. corner of township two, south range, nine West, thence
south to the south East corner of township four, south range nine
West, thence south Westwardly to the Mississippi so as to include
Alexander M'Nabb's farm, and thence up the Mississippi to the be-
ginning, shall constitute a sepparate county to be called Monroe.
Sec. 2, Be it further enacted, That William Alexander, James
Lemon senr. James B. Moore, John Prim, and James M 'Roberts, be,
and they are hereby appointed commissioners to fix upon the proper
place for the seat of Justice for said county of Monroe, who shall meet
for that purpose, on the third Monday of July next at the town of
Harrison and they, or a majority of them, when so assembled togeter,
shall take an oath to fix the said seat of justice at such place as they
shall think best calculated to promote the convenience, and interest of
said county without favour or affection to any individual or individu-
als, provided the owner or owners of the land will give to the county
for the purpose of erecting public buildings, a parcell of land at the
said place, not less than twenty acres, and laid off into lotts and sold
for the above purpose, but should said owner or owners refuse to make
said donation aforesaid, then and in that case it shall be the duty of
the commissioners to fix upon some other place for the seat of Justice
as convenient as may be the different settlements in said county, and
when fixed upon by said commissioners they shall certify under their
hands and seals, and return the same to the next county court in the
county, which said court shall cause an entry thereof to be made on
their records of the said court. Provided however, that if the said
commissioners or a majority of them, shall not be able to meet on
the said third Monday in July next they shall meet as soon thereafter
as it may be convenient, and either at the first or any subsequent
meeting they may continue from day to day so long as they may think
it necessary to form a correct decision ; and said commissioners shall
be entitled to two dollars each per day that they are nessarily em-
ployed in fixing the county seat, to be paid out of their county levy ;
and provided also, that the town of Harrison shall be the seat of
Justice for said county until some other place shall be chosen as afore-
said and public buildings be erected thereon.
Sec. 3. Be it further enacted, That the said county of Monroe
shall be, and hereby is allowed one representative in the House of
laws of 1815—1816 197
Representatives of this territory, who shall be elected in the same
manner that Represetatives are now authorised by law to be elected
in other counties, and he shall be authorised to exercise all the powers,
possess all the privileges, and be entiled to all the emoluments that
any other Representative can exercise possess or receive according to
law.
Sec. 4. Be it further enacted, That whereas the said county of
Monroe was taken off of two districts for the election of Members of
Council, all qualified voters who shall reside within those bounds
which previous to the passage hereof was a part of St. Clair county,
shall have a right to vote for a member of the Legislative Council to
represent them and the qualified voters of St. Clair county as one
district ; and all those qualified voters who shall reside within those
bounds, which previous to the passage hereof, was a part of Randolph
county shall have a right to vote for a member of the Legislative
council to represent them, and the qualified votors of Randolph county
as one district, and it shall be the duty of the Sheriffs of the counties
of Monroe and St. Clair within eight days after the election to attend
at Bellville and compare the polls and make out and deliver to the
person duly elected for that district their joint certificate thereof;
And it shall be the duty of the said sheriffs of Randolph and- Monroe
to attend at Kaskaskia within ten days after the election, to compare
the polls and make out and deliver to the person duly elected for that
district their joint certificate thereof, provided however, that any part
of the said duty may be performed by a legally authorised deputy
sheriff, the principal sheriff being responsible for the faithful dis-
charge thereof, and if the said sheriff, or any of them shall refuse or
fail to perform the duties hereby required, such delinquent, or delin-
quents, shall severally forfeit and pay the sum of two hundred dollars
to be recovered by action of debt or indictment one half to the use
of the territory and the other half to the person sueing or prosecuting
for the same.
Seb. 5. Be it further enacted, That the qualified voters in said
county of Monroe shall be entitled in all respects to the same rights
and privileges in the election of a deligate to Congress, that are al-
lowed by law to the qualified voters of any other county ; and all
elections hereby authorised, shall be held at the seat of Justice for
the said county of Monroe, and shall in all respects be held and con-
ducted as elections are authorised and required to be held and con-
198 ILLINOIS HISTORICAL COLLECTIONS
ducted in other counties. This law to commence and be in force from
and after the first day of June next.
Risdon Moore,
Speaker of the House of Representatives.
Pierre Menard.
President of the Council.
Approved, Jan. 6th 1816.
Ninian Edwards.
An Act for the relief of Hezekiah West Treasurer of the
County of Johnson.
Whereas it has been represented to this Legislature, that the said
Hezekiah West treasurer of the said County of Johnson commenced
and finished listing' the taxable property in said County in the year
1815 before the law authorised him to do the same, in consequence
of which the County Court of said County refuse to receive the said
lists of taxable property, for remedy whereof.
Be it enacted by the Legislative Council and House of Repre-
sentatives of the Illinois Territory, and it is hereby enacted by the
authority of the same ; That the lists so taken shall be as valid in all
respects as if they had been taken in agreeably to the existing laws,
and that the county court of Johnson County shall be compelled to
receive the said list, at the first court hereafter to be held for said
county under the same rules and regulations, as if they had been taken
in, in proper time, any law to the contrary notwithstanding ; And the
sheirff of Johnson County is hereby authorised and required to pro-
ceed to collect the taxes in said County, and that further time untill
May next be given him to make his settlements for said taxes, and the
said sheriff is hereby authorised to collect all taxes now due from the
inhabitants included in the presant bounds of Johnson County, This
law to take effect from and after the passage hereof.
Risdon Moore.
Speaker of the House of Representatives,
Pierre Menard
President of the Council.
Approved Jany. 6, 1816.
Ninian Edwards.
laws of 1815—1816 199
An Act increasing the jurisdiction of the County Courts.
Sec. 1. Be it enacted by the Legislative Council and House of
Representatives of the Illinois Territory and it is hereby enacted by
the authority of the same, That the county courts of this territory
shall hold four sessions annually, and shall have original jurisdiction
of all demands for direct payment of money where the same shall be
over twenty dollars and not exceeding one hundred dollars.
Sec. 2. Be it further enacted, That whenever hereafter any per-
son or persons, shall hold any bill, bond promisory note, or instriv
ment of writing in his her or their own right or assignee of any other
person or persons or shall have an account or verbal contract for the
direct payment of money, within the above specified amount, he, she
or they may at any time after the same becomes due file the said bill,
bond, pramisory note, instrument of writing or account in the Clerk's
office of the countj^ court of that coui~uy in which the debtor or debt-
ors or either of them may reside together with a pepetition in sub-
stance as follows.
County, to wit, A. B. plaintiff states that he holds a bond (or other
instrument of writing as the case may be) or has an account on or
against C. D. defendant (or defendants) in substance and to the effect
following (here insert a copy of the note, other instrument of writing,
or account as the case may be) & if there are any assignment or as-
signments on any such bond, note or other instrument of writing ;
they shall be set fourth as follows, to wit, on which note (bond or other
instrument of writing as the case may be) there is the following
assignment (or assignments,) to wit, (here set fourth the assignment
or assignments) yet the said debt or account as the case may be,
remains unpaid, wherefore the said plaintiff (or plaintiffs) prays
judgment for his debt and damages, together with his costs &c."
Signed' ' A. B." plaintiff.
Sec. 3. Be it further enacted, That the clerks of the said court
on the filing of said petition, shall issue a summons with the copy
of said petition annexed thereto, commanding said defendant or de-
fendants to appear on the first day of the succeeding term of said
court and answer the said petition, or otherwise final judgment will
be entered up against him by default, which said petition and sum-
mons shall be served on the defendant by delivering a copy thereof
by the sheriff of said county to each of the defendants named therein,
attested as a true copy of said petition and summons, by the said
200 ILLINOIS HISTORICAL COLLECTIONS
sheriff:', and the sheriff shall return the original petition and summon
to the clerks office from which it issued with an endorsement thereon
of the execution thereof to the following effect (to wit) "Executed
by delivering a true copy of the within petition and summons to the
said C. D. on the day "of ' ' and if the defend-
ant or defendants or any of them will not receive the said copy of the
sheriff, in that case the sheriff shall read said petition and summons
to the defendant or defendants in an audible voice, and throw down
the copy thereof in the presence of the defendant or defendants, or if
the defendant or defendants when informed by the sheriff that he has
such petition and summons against him her or them, shall fly from
the sheriff before he can have an opportunity of reading the same
to him, her or them, in that case the sheriff shall leave said copy at
the place where the defendant or defendants departed from, and
return the truth of the case, endorsed on the petition and summons
and in either of the last mentioned cases the petition and summons
shall be considered as legally executed.
Sec. 4. Be it further enacted, That the clerk shall set the said
petition on his docket for trial on the first day of the first term suc-
ceeding the filing thereof, and if it shall appear by the sheriffs return
on the petition and summons that the same has been executed on the
defendant or defendants or either of them at least ten days previous
to the return thereof, the same shall stand for trial, in the order in
which it is docketed, but if it has not been executed ten days pefore
the return thereof, it shall be continued until the next term, unless
both parties shall consent to the trial thereof at the term to which
it is returned.
Sec. 5. Be it further enacted, That if on the calling of the cause
any defendant or defendants on whom the petition and summons
has been executed ten days before the return thereof, shall not ap-
pear, the court shall proceed to give judgment for debt, damages
and costs against said defendant or defendants agreeably to the bill,
bond, or other instrument of writing, or in the case of an account,
for the amount thereof, it being first proven by legal testimony, un-
less the plaintiff or plaintiffs shall require a writ of enquiry which
if so required shall be executed immediately by jurors to be taken
from the bye-standers. But if the defendant or defendants shall
appear, he, she or they shall be at liberty to plead any plea which
by law he or they could now do in any action of debt or assumpset
laws of 1815—1816 201
that goes to the real merit of the case, on which plea or pleas an
issue shall be considered as joined ; and that justice may not be en-
tangled in a net of technical nicety, it is hereby explicitly declared
that any testimony which goes to the real merits of the case may be
admitted on such issue, & the jury thereupon shall be at liberty to give
their verdicts for whatever may appear to them to be justly due to
the plaintiff or plaintiffs. Provided however that nothing herein
contained shall prevent the court from continuing said suit on good
cause shewn.
Sec. 6. Be it further enacted, That if the petition and summons
shall be returned not found an alias summons with a copy of the peti-
tion annexed may issue returnable to the first day of the next term
without an order of the Court. Provided nothing herein shall pre-
vent any plaintiff or plaintiffs from proceeding on to the final judg-
ment against any defendant or defendants on whom the said petition
and summons have been returned executed as aforesaid.
Sec. 7. Be it further enacted, That the clerk shall be entitled to
fifty cents for issuing the summons, but no tax fee shall be charged
thereon, and for all other services he ma}^ perform under this law, his
fees shall be the same as are now allowed by law to any other clerks
for similar services, and the sheriff shall receive fifty cents for exe-
cuting said petition and summons on each and every defendant therein
named, and twelve and a half cents for returning the same and for all
other services he shall be entitled to the same fees as the law allows for
similar services.
Sec. 8. Be it further enacted, That nothing in this act contained
shall prevent any plaintiff or plaintiffs, from commencing his, her, or
their action or actions on any bill, bond, note instrument of writing
or account in the same manner that he, she or they might have done
if this law had never been passed.
Sec. 9. Be it further enacted, That whenever one or more
defendants shall reside in another cty, it shall be lawful for the
plaintiff when he files his petition according to this law, to take out a
summons with a copy of the petition as aforesaid directed to the sheriff
of such other county to summons such other defendant or defendants
to answer the said petition, or if it shall appear on the return of the
first petition and summons that one or more of the defendants are
found, the plaintiff may go on to judgment against the defendant or
defendants on whom the petition and summons have been executed
202 ILLINOIS HISTORICAL COLLECTIONS
and discontinue his suit to the other defendants or he may go on to
trial against the defendant or defendants on whom the process has
been executed and taken out an alias petition and summons against
such defendants as have not been found directed to the sheriff of the
county where such defendant or defendants or either of them may
be or reside ; and where such process shall have been returned exe-
cuted, the plaintiff may proceed to judgment agreeably to the regula-
tions aforesaid in the same manner as if no judgment had been given
against the defendant or defendants on whom such process was first
executed. But if the execution on the first judgment shall be returned
satisfied, no execution except for costs shall issue on the second judg-
ments, but if the first judgment, shall not be so satisfied or be but
partly satisfied, execution may issue for the whole or such unsatisfied
part on the said second judgment, and so may execution issue in the
same manner on either of the said judgments until the whole amount
of the debt damages and costs justly due has been collected and no
more. Provided however, that but one execution on either of said
judgments shall issue at once nor shall any new execution issue
until the preceeding one has been returned, or until after the return
day thereof, or the plaintiff or plaintiffs may continue the s'd cause
until the process has been executed on all the defendants.
Sec. 10. Be it further enacted, That the clerk shall have
six cents for filing the petition and the same fees for copying as are
allowed by law for the same service.
Sec. 11. Be it further enacted, That executions may in all other
respects issue and be executed and is provided in cases of judgments
given by any other courts of common law in this territory.
Sec. 12. Be it further enacted That all powers necessary to the
due execution of the duties hereby enjoined on the said county courts
shall be and hereby are conferred on them respectively.
Sec. 13. Be it further enacted, That it shall and may be lawful
for the governor of the territory to appoint all the judges of the
respective county courts and all the clerks thereof during good be-
haviour for the term of three years from the date of their respective
appointments.
This act to be in force from and after the passage thereof.
Kisdon Moore,
Speaker of the House of Representatives,
Approved Jan. 6, 1816. Pierre Menard,
Ninian Edwards. President of the Council.
laws of 1815—1816 203
An Act for relief of Julian Bart.
Whereas it appears to this Legislature that Julian Bart was
drafted to serve a tour of duty as a militia man under a legal requisi-
tion of the Government of the United States, during the past summer
and that the said Bart while in service, and obeying the orders of
his officer was most shockingly wounded, having one arm shot off the
other broken in different places, his body lacerated, and his eye sight
greatly injured, and now lies in a most distressed situation, in the
Town of St. Louis dependent on the bounty of a poor family who are
totally unable to provide the necessary comforts and accommodation
for him, and whereas it would be cruel and unjust to permit him to
linger out a miserable existence rendered so in the service of his
Country without the support which it is able to afford him, therefore :
Be it enacted by the Legislative Council and house of Representa-
tives of the Illinois Territory and it is hereby enacted by the authority
of the same, that the gov. of this territory be, and is hereby author-
ised to apply to the auditor of this Territory for a warrant or war-
rants for such sum or sums as may from time to time become necessary
for the support of the said Julian Bart and to provide for his removal
from St. Louis to Kaskaskia, his place of residence. This act to com-
mence and be in force from and after the passage thereof and to be
in force untill the next sessoin of the Legislature.
Risdon Moore
Speaker of the House of Representatives.
Pierre Menard
President of the Council.
Approved Jan. 9, 1816.
Ninian Edwards.
An Act explaining the Jurisdiction of the Circuit Courts
and for other purposes.
Sec. 1. Be it enacted by the Legislative Council and House of
Representatives of the Illinois Territory, and it is herebj^ enacted by
the authority of the same, That the Jurisdiction of the several Circuit
Courts, shall remain, and extend to all parts of the Territory in which
they had Jurisdiction on the first clay of December 1815.
Sec. 2. Be it further enacted, That nothing contained in any law
204 ILLINOIS HISTORICAL COLLECTIONS
passed at this session of the Legislature erecting and establishing any
new County or Counties shall be construed so as to impair or infringe
upon the power of the sheriffs of the Counties of Gallatin, Johnson,
Randolph or St. Clair, from executing any process legally issuing
from the respective Circuit Courts in any part of their respective
Counties as they existed on the first day of December 1815.
Sec. 3. Be it further enacted, That all recognizances taken by a
conservator of the Peace, for any offence of which the Circuit Courts
have recognizance, shall be returned to the Circuit Court which had
Jurisdiction on the first day of December 1815 over the place where
the offence shall have been committed, and the said offender shall be
committed to the Jail of the County in which the said Circuit Court
shall hereafter be holden, if the offence be not bailable or if he refuse to
give bail, and the said offender shall be tried in said county.
Sec. 4. Be it further enacted, That this act shall take effect from
the passage hereof and remain in force untill a Circuit Court shall be
organized in the new Counties or clerks of such Circuit Courts shall
be appointed therein lawfully qualified to issue the necessary process
and no longer.
Risdon Moore,
Speaker of the House of Representatives,
Pierre Menard,
President of the Council.
Approved Jan. 9, 1816.
Ninian Edwards.
An Act to amend an act entitled "An Act for levying and collecting
a tax on Billiard Tables.
Sec. 1. Be it enacted by the Legislative Cuuncil and House of
Representatives of the Illinois Territory and it is hereby enacted by
the authority of the same, That the annual tax on Billiard Tables shall
hereafter be one hundred and fifty dollars, one hundred dollars to the
use of the Territory and nifty dollars to the use of the county to be
recovered in the same way as is directed by the act that was passed on
the twenty second day of December eighteen hundred and fourteen
for levying and collecting a tax on Billiard Tables, and subject to
the same rules and regulations as are in the said recited acst.
Sec. 2. Be it further enacted, That all laws coming within the
laws of 1815—1816 205
perview of this act shall be, and the same are hereby repealed, This
act to take effect from and after the passage hereof :
Risdon Moore
Speaker of the House of Representatives,
Pierre Menard
President of the Council
Approved, Jan. 9, 1816,
Ninian Edwards.
An Act supplementary to an act entitled "An Act
establishing Ferries.
Sec. 1. Be it enacted by the Legislative Council and House of
Representatives of the Illinois Territory, and it is hereby enacted by
the authority of the same, That any owner, or occupier of a Ferry that
is or may hereafter be established within this territory, shall be and
they are hereby obliged to keep the banks of the River or water course
at the place where such ferry is kept in such repair that waggons
and teams may safely and conveniently pass ; any person or persons
owning or keeping a ferry legally established within this territory
and neglecting or refusing to perform the duties required by this act,
shall for every such offence, be subject to the same penalty as super-
visors of public highways, are for neglect or omission of their duty,
to be recovered in the same way as is pointed out in the law to recover
fines from supervisors for neglect of their duty.
Sec. 2. Be it further enacted, That all Preachers of the Gospel,
when going to and from preachingshall pass ferry free. This act to
take effect from and after the first day of April next.
Risdon Moore.
Speaker of the House of Representatives,
Pierre Menard
. , T n ioi^ President of the Council.
Approved J any. 9, 1816.
Ninian Edwards.
An Act authorising the Clerks of the several County Courts to
administer oaths to officers commissioned, by the Governor.
Whereas the existing law requiring that the Governor of the
Territory shall administer oaths prescribed by law to all officers ap-
pointed under the authority of this government, or that he shall issue
206 ILLINOIS HISTORICAL COLLECTIONS
a Dedimus potestatum, in such cases to some other person for that
purpose is found productive of inconvenience and subject to disap-
pointment and delays in consequence of the extent of the Territory
snd various casualties that attend the sending special powers for
remedy whereof.
Sec. 1. Be it enacted by the Legislative Council, and House of
Representatives of the Illinois Territory, and it is hereby enacted
by the authority of the same, That the clerks of the county courts, in
the respective counties in which they are clerks, shall be authorised
and are hereby required to administer the oaths prescribed by law,
to all persons who may be appointed to offices within their respective
counties whenever thereto required, by any person producing a com-
mission from the Governor appointing him to any office as aforesaid,
and it shall moreover be the duty of each clerk as aforesaid to make
and preserve a record of all such cases and transmit once in every
three months a list of those persons to whom he may have admin-
istered such oaths together with the several dates thereof to the Sec-
retary of the Territory.
Risdon Moore,
Speaker of the House of Representatives.
Pierre Menard.
Approved, Jan. 9th 1816. President of the Council.
Ninian Edwards.
An Act to amend the act entitled "an act establishing Courts for
the trial of small causes.
Sec. 1. Be it enacted by the Legislative Council, and House of
Representatives of the Illinois Territory, and it is hereby enacted by
the authority of the same, That so much as is contained in the nine-
teenth section of the act entitled '4An Act establishing Courts for the
trial of small causes" passed the seventeenth day of September eigh-
teen hundred and seven, as requires Constables who do not possess a
freehold estate of the value of three hundred dollars to give bond
with one good freeholder as security shall be and the same is hereby
repealed and that hereafter any house holder resident in the County
who may be approved by the County treasurer shall be deemed and
taken as sufficient security in any such bond required by law to
be given by any constable as required in the above recited section of
the act aforesaid.
laws of 1815—1816 207
Sec. 2. Be it further enacted, That all bonds required by the
above recited act to be given by constables shall be given to the county
treasurers in the respective counties ; and such bonds so given shall be
conditioned in like manner and for the same purposes as contained
in the above recited act.
Risdon Moore
Speaker of the House of Representatives,
Pierre Menard
Approved Jan. 9, 1816. President of the Council,
Ninian Edwards.
An Act concerning the court of Appeals for Illinois Territory and
the several circuit courts and for other purposes.
Sec. 1. Be it enacted by the Legislative Council and House of
Representatives of the Illinois territory and it is hereby enacted by
the authority of the same, That the circuit courts of this territory
within the respective counties composing each circuit shall have juris-
dicton over all cases, matters and things at common law and in chan-
cery of the value of twenty dollars and upwards and also of cases and
vagrancy attachments, divorces, motions against puclic debtors, clerks,
sheriffs, collectors of public monies for the territory or any county
thereof and of all other matters and things civil or criminal, of which
the general court or court of common pleas, had jurisdiction on the
thirty first clay of December in the year of our lord one thousand
eight hundred and fourteen (except in those cases in which the county
courts now have jurisdiction) and the United States Judges appointed
for the Illinois Territory in their respective circuits shall in term and
in vacation, possess the same powers and perform the same duties in
matters cognizable by the circuit courts which were vested in and
required of the Judges of the General court and courts of common
pleas on the 31st day of December 1814 except those which are now
vested in and exercised by the Judges of the county courts, and the
rules and regulations prescribed by law for the exercise of the powers
and duties hereby granted in all cases applicable shall govern the
said circuit courts and the Judges thereof, and be pursued by all offi-
cers and litigants in said courts respectively — And in all cases not
provided for by law the said circuit courts shall have power to adopt
such rules and regulations as may be necessary to effectuate the
powers hereby granted.
208 ILLINOIS HISTORICAL COLLECTIONS
Sec. 2. And be it further enacted, That all process, recognizances
and other proceedings which were on the 31st day of December 1814
required to be made returnable to either the General court or courts
of common pleas (except those that are returnable to the county
courts) shall hereafter be made returnable to the circuit courts,
respectively.
Sec. 3. Be it further enacted, That all clerks, sheriffs and other
officers in the respective circuit courts shall possess the same powers
perform the same duties and receive the same fees and have the same
mode of collecting them and enjoy all the rights which the like officers
possessed and might have exercised in the courts of common pleas and
the General court on the 31st day of December 1814, Provided how-
ever that nothing herein contained shall be construed to confer any
power or require any duty repugnant to a law of Congress entitled
"An act regulating and defining the duties of the United States
Judges for the territory of Illinois," passed March 3d 1815 it being
the intention of this Legislature to confer on the aforesaid circuit
courts and the Judges thereof such powers and to require of them
such duties as the United States Judges for this territory have here-
tofore from time to time exercised and performed in those cases only
in which such powers and duties shall not be repugnant to the before
recited act of Congress.
Sec. 4. Be it further enacted, That the court of Appeals for Illi-
nois Territory shall have full power and jurisdiction over all the books,
papers, records and proceedings of the late General Court formerly
held at Kaskaskia and it shall be the duty of the Clerk of the court of
Appeals for Illinois territory to demand of the late Clerk of the said
General Court, all the said books, papers, and proceedings of said
court at Kaskaskia which said books, papers records, and proceedings
shall be deposited in the office of the said court of Appeals and be
by him kept as papers of his office and all copies thereof shall be
certified by him.
Sec. 5. Be it further enacted, That all the books, papers, records
and proceedings of the late General Court held at Cahokia shall be
delivered by the late Clerk of the General Court or his deputy at that
place to the clerk of the circuit court for St. Clair county and be by
him kept as papers of his office and all copies thereof shall be certified
by him.
Sec. 6. Be it further enacted, That it shall be lawful for the
laws of 1815—1816 209
clerk of the court of Appeals for Illinois territory to issue execution
upon any judgment rendered by the General Court at Kaskaskia or
replevin Bond, upon which the party was entitled to execution on the
31st day of December 1814 or upon any replevin bond taken accord-
ing- to law upon any execution from the said General Court holden at
Kaskaskia which shall have been taken by any Sheriff, before or after
that day — and becomes due since that day and the Clerk of the cir-
cuit court of St. Clair county may in like manner issue execution
upon judgments rendered by the said General Court at Cahokia and
upon replevin bonds, which said executions shall be executed and re-
turned in the respective Clerks offices as other executions are now
directed by law to be executed and returned, and the several Clerks
of the circuit courts shall have authority to issue execution in like
manner upon judgments rendered by courts of Common Pleas in the
respective counties, and on replevin bonds, which executions shall be
executed and returned to the respective clerks offices from whence
they issued.
Sec. 7. Be it further enacted, That all executions which may be
issued out of the court of Appeals for Illinois territory and circuit
courts shall be executed and be made returnable according to law,
and the clerk' of the said court of Appeals shall keep his office in the
town of Kaskaskia, and the clerks of the circuit courts shall hold
their offices at the court houses of the respective counties.
Sec. 8. Be it further enacted, That the Sheriffs of the several
Counties shall execute and return to the several circuit courts and
to the court of Appeals aforesaid all process whatsoever in the same
manner as was directed by law on the 31st day of December 1814 to
the courts of Common Pleas and General Court, and they shall receive
the same fees for their services as was then allowed by law in the last
mentioned courts and they shall generally perform the same duties
so far as the same can be consistently applied, that by law was then
required and directed in the courts of Common Pleas and General
Court and subuject to the same penalties for failure.
Sec. 9. Be it further enacted. That the court of Appeals and
circuit couts aforesaid shall have power to punish all contempts to
them offered, and inflict the same punishment and fines as in similar
cases, the courts of common pleas were authorised to do by law on
the 3.1st day of December 1814.
Sec. 10. Be it further enacted, That all fines, amercements and
210 ILLINOIS HISTORICAL COLLECTIONS
forfeitures which shall hereafter be assessed by any circuit court shall
be for the use of the county in which such fine amercement or forfeit-
ure shall be assessed, and shall be when collected paid into the county
Treasury — And all fines, forfeitures and amercements which shall be
assessed in the courts of Appeals for Illinois Territory, shall be paid
into the Territorial Ttreasury. And it shall be the duty of the Terri-
torial Auditor to superintend the collection of the fines, forfeitures
and amercements payable to the Territory ; and for that purpose shall
examine the clerks office of the couts of Appeals annually to see what
fines, amercements and forfeitures have been assessed therein and
cause them to be accounted for. — And the respective county Treas-
urers shall perform the same duties in their respective counties as
are required of the Territorial Auditor all of which said fines, for-
feitures and amercements shall be paid and accounted for on the
first day of Dec. annually.
Sec. 11. Be it further enacted, That in all cases where it may
have been the duty of any sheriff, clerk or collector of any public
mone}^ to have made collections and have settled with proper authority
and he or they shall have failed to have done so, or shall hereafter
fail so to do, and there shall appear to be any defect in the bond given
by said officer or other proceeding sufficient to exempt from liability
the security of said officer or to defeat the ordinary proceedings
against himself, the circuit court shall have power to compel such
person whether in or out of office, who has collected or ought to
have done so, to exhibit upon oath a full and fair statement of all
monies by him collected and a list of all persons as far as it may be
practicable to obtain the same of whom such person had a right to
collect and who had failed to pay him accordingly, and the court upon
hearing the whole case without regard to form, shall have power to
give Judgment for such sums of money which such person or persons
as aforesaid ought to be liable to pay according to the true spirit
of the laws and the principles of equity. Provided however that in
all motions against public debtors the defendants shall have ten days
notice of the time and place when and where the motion to the court
will be made against them. This act to be in force from the passage
thereof. 1xr
Kisdon Moore
Speaker of the House of Representatives,
Approved, Jan. 9, 1816, Pierre Menard
Ninian Edwards. President of the Council.
laws or 1815—1816 211
An Act amendatory to the Law concerning Dunkards and Quakers.
Whereas an act passed December 1st 1813 for the relief of Dunk-
ards and Quakers exempting- them from militia duty by their paying
a sum annually to the Sheriff of the County where they reside, and
whereas by the aforesaid recited act it is to be appropriated to the
use of the county.
Be it enacted by the Legislative council and House of Representa-
tives and it is hereby enacted by the authority of the same, That so
much of the above recited act as make the said sums paid by Dunkards
and Quakers for their exemption from militia duty a county tax shall
be and the same is hereby repealed and hereafter it shall be a terri-
torial tax, subject to the same rules and regulations that all other
Territorial taxes are. This act tobe in force from and after the passage.
Risdon Moore,
Speaker of the House of Representatives,
Pierre Menard,
, T „ .ni„ President of the Council.
Approved J any. U, lhlb.
Ninian Edwards.
An Act to compel the citizens of this territory to afford legal assistance
to certain officers in the due execution of their offices.
Be it enacted by the Legislative Council and House of Repre-
sentatives and it is hereby enacted by the authority of the same, That
whenever any Judge, Justice of the peace Sheriff Coroner or Con-
stable, shall lawfully call upon any person to aid and assist in the
lawful execution of their duties of any such office as aforesaid ; and
if any suchperson so caled upon, shall fail or refuse to assist accord-
ingly he shall be liable to a fine of $15 to be recovered before a
Justice, of the peace & to be paid by the officer collecting the same,
into the hands of the county treasurer, who shall apply it in the aid
of the county levy and account for the same, as he is required to ac-
count for any other sum of money that may come into his hands.
Risdon Moore
Speaker of the House of Representatives,
Pierre Menard
President of the Council,
Approved Jan. 9, 1816.
Ninian Edwards.
212 ILLINOIS HISTORICAL COLLECTIONS
An Act supplementary to the several laws for levying and
collecting a tax on land
Sec. 1. Be it enacted by the Legislative Council and House of
Representatives of the Illinois Territory and it is hereby enacted by
the authority of the same, That all non-resident Land claimants shall
enter their lands for taxation with the Auditor of public accounts
at his office on or before the first day of August next agreeably to the
form herein after directed and expressed ; and it shall moreover be
the duty of all non-resident land claimants when any transfer or other
alteration shall be made by them at any time after the said first day
of August next in any of their lands or any purchase, gift, or grant
thereof to or from any non-resident claimant to notify any such alter-
ation, Gift or Grant to the Auditor of public accounts and it shall be
the duty of the Auditor to note the same in his Book of non-residents
lands and to make the required alteration in the next annual list.
Sec. 2. Be it further enacted, That in case any non-resident shall
• fail or refuse to make an entry or entries as provided in the foregoing
section or shall fail or refuse to perform any of the provisions therein
contained it shall and may be lawful for the Auditor to list such non-
rericlents land from the best information he can get and such list made
by the auditot and all sales made of such lands so listed shall be
effectuate and valid and be provided or in the same way as if the
same had been made by any such non-resident land claimant.
Sec. 3. Be it further enacted. That the form of the lists of
non-residents land claimants shall be in the following manner and
the lists of all county commissioners hereafter to be made of land
subject to taxation shall be in the following manner or as nearly so
as the circumstance will permit, (viz.)
laws of 1815—1816
213
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ILLINOIS HISTORICAL COLLECTIONS
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laws of 1815—1816 215
Sec. 4. Be it further enacted, That it shall be the duty of the
Auditor to cause to be published eight weeks in some news-paper
printed in this territory, and in some public news-paper published
at the seat of the genaral government, requiring all non-resident
land claiments to enter their lands for taxation according to the pro-
visions contained in this act, and the several laws to which this is a
supplement ; and he shall draw a warrant or warrants on the treasury
for the expense of the same.
Risdon Moore,
Speaker of the House of Representatives.
Pierre Menard.
President of the Council
Approved, Jan. 9th 1816.
Ninian Edwards.
An Act to erect a new county out of the counties of Randolph
and Johnson.
Sec. 1. Be it enacted by the Legislative Council and House of
Representatives of the Illinois Territory, and it is hereby enacted by
the authority of the same, That all that part of the counties of Ran-
dolph and Johnson included within the following bounds to wit : Be-
gining at the mouth of Big Muddy river and running up the same
to the township line between ten and eleven ; thence east with said line
to the principal meridian line running from the mouth of the Ohio
river; thence north with the meridian line thirty miles; thence west
twenty four miles to the corner of range between four and five west
of the principal meridian line ; thence south six mites to the township
corner between six and seven ; thence to the head waters of the creek
called Gagnic, and down it to the Mississippi ; thence down the Missis-
sippi to the beginning, shall be a seperate and distinct county and
called and known by the name of Jackson. And for the purpose of
fixing the permanent seat of justice for the said county, the following
persons are appointed commissioners, Robert Cox, "William Boon,
Zephna Brooks, Jesse Griggs and James Gill, which said commission-
ers, or a majority of them after having been duly sworn before some
judge or justice of the peace in this territory to faithfully take into
consideration the situation of the settlements, the interest of the peo-
ple and the eligibility of the place, shall meet on the first Monday of
April next at the house of Nathan Davis, on Big Muddy, and proceed
216 ILLINOIS HISTORICAL COLLECTIONS
to examine and determine on the place for the seat of justice and
designate the same ; Provided, the owner or owners of the land will
give to the county for the purpose of erecting public buildings, a par-
cel of land at the said place not less than twenty acres, and laid off
in lots and sold for the above purpose ; but should said owner or owners
refuse to make said donation aforesaid, then and in that case it shall
be the duty of the commissioners to fix upon some other place for the
seat of justice, as convenient as may be to the different settlements
in said county, which place when so fixed upon by the said commis-
sioners, they shall certify under their hands and seals and return the
same to the next county court in the county ; and as a compensntion
for said services, they shall each be allowed two dollars for every
day they may be necessarily employed in fixing the aforesaid seat of
justice to be paid out of the county levy, which said court shall cause
an entry thereof to be made on their records; and until the public
buildings shall be fixed the court shall be holden at the house of
Nathan Davis, on Big Muddy river.
Sec. 2. Be it further enacted, That the said county of Jackson
is allowed one representative in the House of Representatives in this
territory, who shall be elected agreeably to law, and shall be entitled
to all the powers, liberties, privileges and immunities allowed by law
to other members of the House of Representatives.
Sec. 3. Be it further enacted, That hereafter the counties of
Randolph and Jackson, and that part of Monroe county which lies
within those bounds which previous to the erection of said Monroe
county made a part of Randolph, shall compose one district for the
purpose of electing a member to the Legislative council, and the citi-
zens of said county shall be entitled at any election for a member to
the Legislative council to represent said district, to proceed to vote
for such member ; and it shall further be the duty of the Sheriff of
Jackson within ten days after the close of the said election to attend
at the court house of Randolph county, with a statement of the votes,
and the sheriff of Randolph county shall attend at the same time and
place with the votes of his county to compare the poles of the respec-
tive counties, and join with the sheriffs of Jackson and Monroe
counties in making out and delivering to the person elected a certifi-
cate of his election ; and for a failure thereof they shall forfeit and
pay the sum of one hundred dollars each, to the use of the territory
laws of 1815—1816 217
to be recovered by motion of the prosecuting attorney before any court
having competent jurisdiction thereof.
Sec. 4. And be it further enacted, That the citizens of the said
county of Jackson shall be entitled in all respects to the same previ-
leges in the election of a delegate to congress, that, are allowed to the
citizens of any other county ; and all elections are to be conducted at
the same time and in the same manner as are prescribed by law. This
act to commence and be in force from and after the first day of April
next.
Kisdon Moore,
Speaker of the House of Representatives.
Pierre Menard,
., T .,„ .,„.,„ President of the Council.
Approved, January 10, 181b.
Ninian Edwards.
An Act respecting the Recording of 'proceedings in law suits.
Be it enacted by the Legislative Council and House of Representa-
tives of the Illinois Territory, That any law now in force requiring
the clerk or clerks of any court in this territory, to make out a com-
plete record of the proceedings and papers filed in any .suit except
when the title of land may come in question, be, and the same is hereby
repealed ; and if airy clerk shall hereafter make out a complete record
at the request of one of the parties litigant, he shall be entitled to the
same compensation from the party requesting the same, as was allowed
by law heretofore. This act to commence and be in force from and
after the passage thereof.
Risdon Moore,
Speaker of the House of Representatives.
Pirre Menard,
Approved, January 10, 1816. President of the Council,
Ninian Edwards.
An Act to erect a new county out of the counties of Gallatin
and Johnson.
Sec. 1. Be it enacted by the Legislative Council and House
of Representatives of the Illinois Territory, and it is hereby enacted
by the authority of the same, That all that tract of country situate
and lying within the following bounds, to-wit : Beginning on the Ohio
218 ILLINOIS HISTORICAL COLLECTIONS
river where the meridian line leaves it that divide ranges number
three and four, east of the third principal meridian ; thence north
to the township line, dividing township ten and eleven south ; thence
east eighteen miles ; thence to that point on the Ohio where the line
dividing range eight and nine leaves it ; thence down the same to the
beginning, shall constitute a separate county, to be called and known
by the name of Pope : and for the purpose of fixing the permanent
seat of justice for the said county, the following persons shall be and
hereby are appointed commissioners, viz : Samuel Omelvany, Benom
Lee, John Reed, James N. Fox and James Titsworth, which said com-
missioners or a majority of them being first duly sworn before, some
judge or justice of the peace in this territory, to faithfully take into
view the situation of the settlements, the geography of the countty,
the convenience of the people, and the eligibility of the place, shall
meet on the first Monda}^ in April next, at the house of Thomas
Ferguson, on the Ohio river, and proceed to examine and determine
on the place for the permanent seat of justice and designate the same :
Provided, the proprietor or proprietors of the land shall give to the
said county for the purpose of erecting public buildings, a quantity
of land at the said place, not less than twenty acres, to be laid off
in lots and sold for the above purpose. But should said proprietor
or proprietors refuse or neglect to make the donation aforesaid, then
and in that case, it shall be the duty of the commissioners to fix upon
some other place for the seat of justice as convenient as may be to the
different settlements in said county ; which place so fixed and deter-
mined on, the said commissioners shall certify under their hands and
seals, and return the same to the next county court in the county
aforesaid ; and as a compensation for their services they shall each be
allowed two dollars for every clay they may be necessarily employed
in fixing the aforesaid seat of justice, to be paid out of the county levy,
which said court shall cause an entry thereof to be made on their
records ; and until the public buildings shall be fixed, the court shall
be holclen at the house of Thomas Ferguson, on the Ohio river.
Sec. 2. Be it further enacted. That it shall any may be lawful
for the governor of this territory immediately to constitute the militia
within the county thus laid off into one regiment ; the commanding
officer shall have the same power to order out the militia as is now
possessed by the lieutenant colonels of the respective regiments.
Sec. 3. Be it further enacted, That the said county of Pope is
laws of 1815—1816 219
hereby allowed one representative in the house of representatives of
this territory, who shall be elected agreeably to law, and be entitled
to all the immunities, powers and privileges prescribed by law to the
members of the house of representatives.
Sec. 4. Be it further enacted, That the counties of Johnson and
Pope shall compose one district for the purpose of electing a member
to the legislative council, and the citizens of said county entitled to
vote, may at any election for a member of the legislative council to rep-
resent said district, proceed to vote for such member; and it shall
moreover be the duty of the sheriff of the said county of Pope, within
ten days after the close of said election, to attend at the court house
of the county of Johnson with a statement of the votes, and the
sheriff of Johnson county shall attend at the same time and place
with the votes of his county to compare the polls of the respective
counties, and to join with the sheriff of Pope in making out and deliv-
ering to the person duly elected, a certificate thereof ; and for a failure
thereof they shall forfeit and paty the sum of one hundred dollars
each, to the use of the territory, to be recovered by motion of the
prosecuting attorney before any court having competent jurisdiction
thereof.
Sec. 5. Be it further enacted, That the citizens of the said
county of Pope, are hereby entitled in all respects, to the same rights
and privileges in the election of a delegate to congress, as well as for a
member of the house of representatives of the territory that are
allowed by law to other counties of this territory, and all elections
are to be conducted at the same times and in the same manner as are
prescribed by law for other counties. And whereas the comity of
Gallatin at present is allowed to two members in the house of represen-
tatives, in future, it shall only be entitled to one. This act to take
effect from and after the first day of April next.
Risdom Moore,
Speaker of the House of Representatives.
Pirre Menard,
President of the Council.
Approved, January 10, 1816.
Ninian Edwards.
220 ILLINOIS HISTORICAL COLLECTIONS
An Act concerning the title papers to land deposited with the receiver
of public monies foi' the district of Kaskaskia.
Sec. 1. Be it enacted by the Legislative Council and House of
Representatives of the Illinois Territory, and it is hereby enacted by
he authority of the same. That all copies of deeds or other convey-
ances of land, which have been deposited in the office of, and which
shall be certified by the receiver of public monies for the district of
Kaskaskia, where the originals have not heretofore been recorded, may
be recorded in any recorders office of this territory and such record
shall be as valid in law as if the original deed or conveyance had
been adduced to the recorder to be recorded.
Sec. 2. Be it further enacted. That all copies of deeds or other
conveyances aforesaid shall be recorded within two years from the date
of the passage of this act, and the receiver shall be entitled for tran-
scribing any such deed or conveyance the like fees as are allowed to
the recorders of the several counties in this territory, and for endors-
ing his certificate to any such copy twenty-five cents, to be paid by
the applicant at the time of delivering the copy. This act to take
effect from and after the passage thereof.
Risdon Moore.
Speaker of the House of Representatives.
Pierre Menard,
President of the Council
Approved, January 10, 1816.
Ninian Edwards.
An Act to authorise the Governor to issue commissions to all officers
civil and military in the new counties, erected at the present session
of the Legislature.
Be it enacted by the Legislative Council and House of Representa-
tives of the Illinois Territory, That the Governor be, and is hereby
authorised and empowered to issue all commissions for officers both
civil and military, in the new counties erected at the present session
of the Legislature, and the officers so appointed shall, so soon as the
laws erecting said counties respectively shall be in force, exercise all
the powers and perform all the duties in said counties, as other officers
of the same description now exercise in this territory, but until the
said laws shall be in force, the said officers shall exercise no powers.
laws of 1815—1816 221
nor be required to perform any duties under the commissions
issued by virtue of this act; and the judges commissions of the
county courts in said new counties shall take effeet, and hold good for
the term of three years, commencing with the operation of the
laws establishing said new counties respectively, under the same
restrictions as are specified in the act increasing the jurisdiction of
the county courts.
Risdon Moore,
Speaker of the House of Representatives.
Pierre Menard,
President of the Council.
Approved, January 10, 1816.
Ninian Edwards.
An Act concerning the duties and fees of the clerk of the court of
appeals for Illinois Territory.
Be it enacted by the Legislative Council and House of Represen-
tatives of the Illinois Territory, and it is hereby enacted by the
authority of the same, That the clerk of the court of appeals for Illi-
nois territory shall perform the same duties in similar cases and be
entitled to the same fees as the clerk of the general court was required
to perform and allowed to receive by law on the thirty first day of
December eighteen hundred and fourteen, and he shall have the same
mode of recovering his fees as the said clerk of the general court had
on the day aforesad.
Risdon Moore,
Speaker of the House of Representatives,
Pierre Menard,
President of the Council.
Approved, January 11, 1816.
Ninian Edwards.
An Act concerning District Attornies.
Be it enacted by the Legislative Council and House of Repre-
sentatives of the Illinois Territory, and it is hereby enacted by the
authority of the same, That the new counties of Pope and White, so
soon as the laws erecting those counties shall take effect shall be
added to and make a part of the district heretofore composed of the
222 ILLINOIS HISTORICAL COLLECTIONS
counties of Johnson, Gallatin and Edwards; and that the new coun-
ties of Monroe and Jackson, so soon as the laws erecting those new
counties shall take effect, shall be added to and make a part of the
district heretofore composed of the counties of Madison, St. Clair and
Randolph ; and it shall be the duty of the district attornies appointed
to prosecute in the districts aforesaid, to prosecute in all cases accord-
ing to law that may arise within any new county hereby attached
to their districts respectively.
Risdon Moore,
Speaker of the House of Representatives.
Pierre Menard,
. , T .., .,„.,„ President of the Council
Approved, January 11, 181b.
Ninian Edwards.
An Act to amend an act entitled, ''an act supplemental to an act
entitled, "an act to amend the militia law of this Territory."
Be it enacted by the Legislative Council and House of Represen-
tatives of the Illinois Territoiy, and it is hereby enacted by the au-
thority of the same, That the provisions contained in the first section
of an act entitled, "An act supplemental to an act entitled, an act to
amend the militia law of this territory, shall be and the same is hereby
repealed.
Risdon Moore,
Speaker of the House of Representatives.
Pierre Menard,
President of the Council.
Approved, January 11, 1816.
Ninian Edwards.
An Act making appropriation for the year 1816, andfor
other purposes.
Sec. 1. Be it enacted by the Legislative Council and House of
Representatives of the Illinois Territory, and it is hereby enacted by
the authority of the same. That the sum of one hundred dollars is
hereby appropriated to defray contingent expenses for the year one
thousand eight hundred and sixteen, and that all monies which may
be received into the territorial treasury during the present year, except
as above appropriated for contingent expenses, shall be a general fund
laws of 1815—1816 223
for all monies allowed by law. The said sum of one hundred dollars al-
lowed for contingent expenses shall be subject to the orders of the
Governor on the Auditor for the payment of expenses and allowances
which may be necessary, and unforseen and unprovided for by the
legislature and for distributing the lawTs ; a statement of which shall
be laid by the governor and auditor before the legislature at its next
session.
Sec. 2. Be it further enacted, That there shall be paid out of the
territorial treasury on the warrant of the auditor to each member of
the Legislative Council and house of Representatives, the sum of three
dollars per day for each clays attendance at the present session of the
legislature, and at the rate of three dollars for every twenty miles
travel to and from the seat of government to their places of residence
by the most usual road. To the secretary of the legislative council
for his services at the present session, the sum of three dollars and
fifty cents per day ; and to the clerk of the House of Representatives
for his services at the present session, the sum of three dollars and
fifty cents per day ; and to the engrossing and enrolling clerk, the
sum of three dollars and fifty cents per day ; and to the door keeper
of both houses the sum of two dollars per day for every days atten-
dance at the present session.
Sec. 3. Be it further enacted, That the compensation which may
be due to the members and officers of the legislative council shall be
certified by the secretary thereof, and the secretary's by the president
thereof ; and those that may be due to the members and officers of the
House of Representatives including the engrossing and enrolling
clerk and door-keeper shall be certified by the clerk, and the clerk's
by the speaker, which certificate shall be sufficient evidence to the
auditor of the claim, and he shall thereupon issue to such person so
entitled a warrant or warrants on the territorial treasury for the
amount of his certificate, which warrant as well as all other warrants
shall draw interest from the date thereof until paid at the treasury.
Sec. 4. Be it further enacted, That the following shall continue
for one year commencing on the first day of January, one thousand
eight hundred and sixteen, to be the salaries of certain officer as
follows, viz. For the two prosecuting attornies, one hundred and
fifty dollars each. To the auditor of public accounts, the sum of
three hundred dollars ; for the territorial treasurer, the sum of two
hundred dollars. To the adjutant general one hundred dollars.
224 ILLINOIS HISTORICAL COLLECTIONS
Sec. 5. Be it further enacted, That there shall be allowed and
paid out of the general fund to the following persons the following
sums of money, viz. To William Bennett, for house room and fire-
wood during the present session, two dollars per day. To William
Arrundel, for stationary furnished at the present session nine dollars
and twenty-five cents. To Matthew Duncan, for printing the judiciary
memorial three dollars. To Hugh H. Maxwell, auditor of public
accounts for furnishing a copy of certain abstracts to the several
county treasuries, of the territory and other services, the sum of
twenty-nine dollars and seventy-five cents. To Thomas Sloo, for a
transcript of sales of land in the Shawneetown district furnished the
auditor of public accounts, the sum of thirty dollars. To Michael
Jones, for the like services to that of Mr. Sloo, one hundred dollars. To
AVilliam C. Greenup, clerk to the court of appeals for a book of records
for his office, seventeen dollars. To Robert Morrison, for books fur-
nisned his office while clerk to the late general court, the sum of thirty
three dollars. To Pierre Menard, for paper furnished the legislature,
the sum of four dollars. To William B. Whitesides, for five days
service as adjutant pro-tem. at two dollars per day by order of colonel
Judy, ten dollars.
Risdon Moore,
Speaker of the House of Representatives,
Pierre Menard.
President of the Council.
Approved, Jan. 11, 1816.
Ninian Edwards.
An Act declaring to whom the redemption money for lands sold for
taxes shall oe paid.
Sec. 1. Be it enacted by the Legislative Council and House of
Representatives of the Illinois Territory, That the clerks of the
several county courts respectively, shall hereafter receive the redemp-
tion money for lands sold for the taxes, in like manner and subject to
the like rules and regulations as were prescribed to the clerks of the
courts of common pleas, by the laws in force on the twenty-first day of
December, 1814: Provided, however, That no such clerk shall either
directly or indirectly bid for or be concerned in any bid for, or in the
purchase of any tract of land sold for taxes, till after the period of
redemption shall have elasped. And any clerk being either directly
laws of 1815—1816 225
or indirectly concerned in any purchase contrary to this act, shall be
deemed guilty of a high misdemeanor ; and all such purchases made
contrary to the intention of this act, shall be absolutely null and void
to all intents and purposes whatever.
Sec. 2. Be it further enacted, That no sheriff of any county,
shall be at liberty to become a bidder for any land sold for taxes in
the county in which he resides, under the same circumstances, and
under the same penalties as are prescribed in the first section of this
act. This act to take effect from and after the passage thereof.
Risdom Moore,
Speaker of the House of Representatives.
Pirre Menard,
President of the Council.
Approved, January 11, 1816.
Ninian Edwards.
An Act to suppress the counterfeiting of hank notes.
Sec. 1. Be it enacted by the Legislative Council and House of
Representatives of the Illinois Territory, and it is hereby enacted by
the authority of the same, That if any person within this territory
shall falsely make, alter, forge or counterfeit, or cause or procure to
be falsely made, altered, forged or counterfeited any bill or note
for the payment of money which shall on the face thereof, purport to
be the note of any bank within any one of the United States, or any one
of their territories, whether such bank be or be not in existence at the
time that such note shall be so falsely made, altered, forged or coun-
terfeited, every such person, whether he shall pass or attempt to pass
such false, altered, forged or counterfeit note, so purporting as afore-
said or not, shall be deemed and adjudged guilty of felony ; and being
thereof convicted according to the clue course of law, shall suffer
death by hanging, without benefit of clergy.
Sec. 2. Be it further enacted, That if any person within this
territory shall manufacture or cause or procure to be manufactured,
or shall bring into the territory, or dispose of any paper resembling
that on which bank notes are usually issued, with intent that the
same shall be used for the purpose of making any false, forged or
counterfeit note, every such person shall be deemed and adjudged
guilty of felony; and being thereof legally convicted, shall suffer
death, without the benefit of clergy.
226 ILLINOIS HISTORICAL COLLECTIONS
Sec. 3. Be it further enacted, That if any person within this
territory shall make, or cause or procure to be made, or shall aid or
assist in making any plate, or shall make or cause or procure to be
made, or shall aid or assist in making of any engraving, or shall bring
into the territory, or dispose of any plate or engraving, with intent
that the same shall be used for the purpose of making any false,
forged or counterfeit note, every such person shall be deemed and
adjudged guilty of felony; and being thereof legally convicted, shall
suffer death, without benefit of clergy.
Sec. 4. Be it further enacted, That if any person within this
territory shall utter, or publish as true, or shall pass or attempt to
pass as good and genuine, any false, altered, forged, counterfeit bill
or note, for the payment of money, purporting to be the bill or note
of any bank within one of the United States, or any one of their
territories, whether such bank be or be not in existence at the time,
with intent to defraud, and knowing the same to be false, altered,
forged or counterfeited, every such person shall be deemed and ad-
judged guilty of felony ; and being thereof legally convicted, shall be
sentenced to pay a fine of four fold the amount of such note or bill
as aforesaid, and to receive not less than thirty-nine lashes well laid
on, on his bare back ; and shall moreover be deemed infamous, and be
held incapable of holding any office, or of giving testimony in any case
whatever.
Sec. 5. Be it further enacted, That if any person within this
territory shall aid or assist any other person, in uttering or publish-
ing as true, or in passing or attempting to pass as good and genuine,
or shall conspire with one or more persons, to pass any false, altered,
forged or counterfeited note or bill as aforesaid, with intent to de-
fraud, knowing the same to be false, altered, forged or counterfeited,
every such person shall be deemed and adjudged guilty of felony ;
and being thereof legally convicted, shall be sentenced to pay a fine of
forefold the amount of such note or notes, bill or bills as aforesaid,
and shall receive thirty-nine lashes well laid on, on his bare back ; and
shall moreover be deemed infamous, and be held incapable of holding
any office, or giving testimony in any case whatever.
Sec. 6. Be it further enacted, That if any person within this
territory shall attempt to seduce any other person into, or engage him
in any unlawful attempt or attempts, conspiracy or conspiracies to
utter and publish as true, or to pass as good and genuine any such
laws op 1815—1816 227
false, altered, forged or counterfeit note or bill as aforesaid, every
such person so offending, and being thereof legally convicted, shall
be sentenced to pay a fine of five hundred dollars, and to receive thirty
nine lashes well laid on, on his bare back.
Sec. 7. Be it further enacted, That if any person within this
territorj'-, shall actually secret, with intent to conceal any money-
moulds, any plate or engraving suitable for making such false, altered,
forged or counterfeit notes or bills as aforesaid, or shall keep in
his possession for the space of one month without giving notice
thereof to some judge or justice of the peace, any moulds suitable
for making counterfeit money, or any such plates or engravings as
aforesaid ; every such person being thereof legally convicted, shall
be sentenced to pay a fine of five hundred dollars, and to receive thirty
nine lashes well laid on, on his bare back.
Sec. 8. Be it further enacted, That if any person who shall be
sentenced to pay any fine imposed by this act, shall be unable or fail
or refuse to pay the same, every such person shall be committed to jail,
there to be safely kept in the apartment provided for criminals till the
next term succeeding that at which he was convicted, unless the fine
shall be sooner paid ; in which case he shall be immediately dis-
charged ; but if the fine shall not be paid on the first day of the term
succeeding his conviction, he shall still remain in safe keeping as
aforesaid, and it shall be the duty of the court to enter up an order
on their records directing the sheriff of the county to sell the said
offender for the term of seven years, first having given three weeks
previous notice of the time and place when and where said offender
shall be offered for sale ; and it shall be the duty of such sheriff to
sell the said offender accordingly for ready money to the highest
bidder, and the proceeds of such sale shall be applied to the payment
of the prison dues or fees, which may have been created by the deten-
tion and confinement of the said offender, and the ballance shall be
accounted for by said sheriff as he is now bound by law to account for
other fines collected by him of a like nature.
Sec. 9. Be it further enacted, That if any person shall be sold
for the cause and in the manner prescribed by the last section, and
such person shall runaway or absent himself from the service of his
master or owner without the consent of said master or owner, it shall
be lawful for any county court or other court of common law, upon
motion to them made for that purpose to hear the complaint of said
228 ILLINOIS HISTORICAL COLLECTIONS
master or owner; and if upon the hearing thereof the said court shall
be satisfied by legal testimony, that the person so sold as aforesaid
did runaway or absent himself from the service of his master without
leave, it shall be the duty of such court to enter up a judgment that
such person for running away or absenting himself as aforesaid shall
serve his said master an additional term consisting of double the
length of time that such person was runaway or had absented himself
from the service of his said master or owner.
Risdon Moore,
Speaker of the House of Representatives.
Pierre Menard,
President of the Council.
Approved, January 11, 1816.
Ninian Edwards.
laws of 1815—1816 229
RESOLUTIONS.
WHEREAS, This legislature is informed that the register and
receiver of the land office, for the district of Kaskaskia, are required
to designate a township of land allotted to this Territory, by an act
of congress for the benefit of a semmary of learning, and as the duties
of those officers will not admit of their absence from their offices a
sufficient length of time to enable them to make the most advantageous
and beneficial selection ; Therefore be it
RESOLVED by the Legislative Council and House of Repre-
sentatives of the Illinois Territor}^ That the said register and receiver
aforesaid be requested to emply one or more fit persons acquainted
with the situation and quality of the unlocated lands in the district,
to examine and recommend to them one entire township, which to
them may appear best calculated to answer the above intention, and
such person so employed by them on producing their certificate to
the auditor, shall obtain a warrant for the amount they may allow.
Risdon Moore,
Speaker of the House of Representatives.
Pierre Menard,
Approved, January 4, 1816. President of the Council.
Ninian Edwards.
RESOLVED by the Legislative Council and House of Repre-
sentatives of the Illinois Territory, That Nathaniel Pope, and Daniel
P. Cook, be appointed a committee to superintend the printing of
the laws and journals of the present session of the legislature, whose
certificate to the printing of the completion of the said printing, shall
entitle him to a warrant from the auditor for the amount to which he
may be entitled according to the contract made for the said printing ;
and that the said committee of superintendance shall be entitled to the
sum of twenty five dollars for furnishing a copy of the laws and
superintending the printing aforesaid, for which they shall receive
a warrant from the auditor on the completion thereof, on the terri-
torial treasury.
Risdon Moore,
Speaker of the House of Representatives.
Pierre Menard,
Approved, January 11, 1816. President of the Council.
Ninian Edwards.
LAWS
PASSED BY
THE LEGISLATIVE COUNCIL,
AND
HOUSE OF REPRESENTATIVES,
OF
ILLINOIS TERRITORY,
AT
TRIER FIFTH SESSION,
HELD AT
Kaskaskia — 1816- '17.
KASKASKIA, I. T.
PRINTED BY COOK & BLACKWELL,
Printers to the Territory.
1817.
[Reprinted from the first edition.]
TABLE OF CONTENTS.
Page
AN ACT to Establish the Name of the Town Now Called "Carthage,"
in the County of Monroe Illinois Territory 233
To Amend an Act Entitled, "An Act to Encourage the Killing of
Wolves" 233
For the Relief of the County Courts of Edwards and Gallatin 234
Providing for the Alteration and Establishment of the County Seat of
Justice in Johnson County 234
For the Relief of Augustin Penceneau and Adalaide, His Wife 237
To Prevent Attornies at Law Residing in the State of Indiana From
Practicing in the Courts in this Territory 238
To Alter a Part of the Lines Between the Counties of Gallatin and
Pope 239
To Incorporate the President, Directors and Company of the Bank of
Illinois 239
Supplemental to an Act, Entitled, "An Act Concerning Executions. . . . 246
For the Division of Edwards County 247
Supplemental to an Act Entitled, "An Act for the Relief of Persons
Imprisoned for Debt" 250
To Establish Inspections within this Territory 251
To Regulate the Practice in Certain Cases 253
Forming a New County Out of the County of Madison 254
Regulating and Defining the Duties of the United States' Judges, for
the Territory of Illinois 256
Supplemental to an Act Entitled, "An Act Regulating and Defining the
Duties of the United States' Judges, for the Territory of Illinois". . 263
Regulating the Time of Holding the County Courts 264
To Authorize the Governor to Organize the Militia of Edwards and
Crawford Counties 265
To Amend an Act Entitled, "An Act to Amend an Act Entitled an Act for
Levying and Collecting a Tax on Land," Passed the 24th December
1814 265
To Provide for the Collection of the County Levy and Territorial Tax,
in the County of Gallatin, for the Year 1816 265
For the Appointment of Circuit Attornies 266
Altering the Mode of Taking in Lists of Taxable Property 267
Supplemental to an Act Concerning Justices of the Peace 270
Concerning the Courts of Jackson County 272
To Authorize the Collection of Monies Due from the Citizens of Bond
and Crawford Counties, to the Counties of Madison and Edwards, and
for Other Purposes 272
Making Appropriations for the Year 1817, and for Other Purposes. . . . 273
Defining the Duties of Clerks in Granting Letters of Administration
and for Other Purposes 275
To Explain the Law Regulating Sheriffs Fees in Certain Cases 276
Resolutions 277
LAWS OF ILLINOIS TERRITORY,
Enacted in 1816-' 17.
An Act to establish the name of the Town now called "Carthage,"
in the county of Monroe, Illinois Territory.
Be it enacted by the Legislative Council and House of Repre-
sentatives of the Illinois territory, and it is hereby enacted by the
authority of the same, that the town now called "Carthage," in the
county of Monroe and Illinois territory, shall hereafter be known
by the name of Harrisonville ; and in all public writings and docu-
ments, whenever the name of said town shall be necessary to be men-
tioned in said county of Monroe, the name of Harrisonville shall be
used.
This act to take effect from and after the passage thereof.
Geo. Fisher,
Speaker of the House of Representatives.
Pierre Menard,
President of the Legislative Council.
Approved — December 21, 1816.
Ninian Edwards.
An Act to amend an act entitled, "an act to encourage the
killing of Wolves"
Be it enacted by the Legislative Council and House of Repre-
sentatives of the Illinois territory, and it is hereby enacted hy the
authority of the same, that so much of the act entitled, "an act to
encourage the killing of "Wolves," as creates a difference in the com-
pensation allowed by said act to every person who shall kill a wolf
not exceeding six months old, and a wolf of six months old and up-
wards, shall be, and the same is hereby repealed.
Sec. 2. Be it further enacted, That there shall be allowed to
any person or persons who shall kill any wolf or wolves conformably
to the provisions of the above recited act, upon making the proof
required by said recited act, the sum of two Dollars, for each and
every such wolf, such person or pessons shall kill.
233
234 ILLINOIS HISTORICAL COLLECTIONS
Sec. 3. Be it further enacted, That this act commence and be in
force from and after the passage thereof.
Seth Gard,
Speaker of the House of Representatives, pro tempore.
Pierre Menard.
President of the Legislative Council.
Approved — December 21, 1816.
Ninian Edwards.
An Act for the relief of the county courts of Edwards and Gallatin.
WHEREAS, The county courts for the counties of Edwards and
Gallatin, in consequence of a mistake in the revision and promulgation
of the Laws defining their duty in lajang county levies in the year
eighteen hundred and fifteen, laid a tax on neat Cattle in said
counties : — For remedy whereof,
Be it enacted by the Legislative Council and House of Represen-
tatives of Illinois territory, and it is hereby enacted by the authority
of the same, that the said county courts shall be, and they are hereby
exempt from all accountability to the public, which they might have
incurred in consequence of such levy ; and that each and every indi-
vidual who has paid a tax upon neat cattle in the year eighteen hundred
and fifteen, shall be, and they are hereby allowed the amount of said
tax, to be deducted from the amount of taxes, -which they may be
required to pay for any subsequent year. This act to be in force from
and after its passage. _. ^
Seth Gard,
Speaker of the House of Representatives , pro tempore.
Pierre Menard,
President of the Legislative Council.
Approved — December 26, 1816.
Ninian Edwards.
An Act providing for the alteration and establishment of the county
seat of Justice in Johnson county.
WHEREAS, By reason of the erection of the county of Jackson
out of a part of the county of Johnson, the present seat of Justice in
Johnson county is found inconvenient to the settled inhabitants of
the county, and likely to be so, to the probable future settlements,
which may be made therein : For remedy whereof,
laws of 1816—1817 235
Be it enacted by the Legislative Council and House of Representa-
tives of the Illinois territory, and it is hereby enacted by the authority
of the same, That John Boman, John C. Smyth, William Smyth, John
Weldon, and William Piles, be and they are hereby appointed com-
missioners, who or a majority of them, after being duly sworn before
some judge or justice of the peace in this territory, to faithfully
take into view the situation of the settlements, the arable lands on
which it is likely future settlements will be made, the geography of
the country, the convenience of the people, and the eligibility of the
place, shall meet on the first Monday in February next, at the house
of William Piles, esq. and proceed to examine and determine on the
place for the permanent seat of justice for Johnson county, and desig-
nate the same: Provided the proprietor or proprietors of the land
shall give by a deed of conveyance, to be made to the Judges of the
county court of Johnson and their successors in office, for the purpose
of erecting public buildings, a quantity of land at the said place, not
less than twenty acres, to be laid out by direction of the county court,
into lots and sold for the benefit of the county, for the purpose of
erecting public buildings on such part of the said twenty acres as
the county court may deem proper to reserve for that purpose. But
should the said proprietor or proprietors refuse or neglect to make
the donation aforesaid, then and in that case, the commissioners may
fix on some other eligible place, as near thereto, as they may deem
consistent with the restrictions aforesaid ; which place, when the com-
missioners shall have fixed and determined on the same, they shall
certify under their hands and seals, and return the same to the county
court of Johnson county, who shall cause an entry to be made thereof
on their records.
Sec. 2. Be it further enacted by the authority aforesaid, That
in case the place fixed on by the commissioners aforesaid, shall hap-
pen to be saleable lands of the United States, the said commissioners
shall certify the same to the county court of Johnson county, wlio
shall as soon as practicable cause the same to be purchased, not exceed-
ing a quarter section of land, and may order the amount of the instal-
ments of the purchase money, to be paid out of the county monies as
they may deem expedient ; which said land so purchased, shall be laid
out into lots, or such part thereof as the court shall direct from time
to time, and be sold, and the nett proceeds applied to the erection
of public buildings, and refunding the amount of the instalments of
236 ILLINOIS HISTORICAL COLLECTIONS
the purchase money aforesaid: Provided however, that in case the
tract of public land on which the commissioners shall fix and desig-
nate, should be purchased by any other person or persons before the
county court shall apply for the purchase, the commissioners may
designate, and fix on some other eligible place as above mentioned.
Sec. 3. Be it further enacted by the authority aforesaid, that the
commissioners aforesaid shall receive a compensation of two Dollars
each, for every day that they may necessarily be employed in fixing
the aforesaid seat of justice, to be paid out of the county levy, by an
order of the count}^ court, and as soon as the county seat shall be
designated and established as aforesaid ; the county court of Johnson
county shall cause the lots to be surveyed and sold in such manner
as they may direct, and when the amount of purchase money shall be
paid by any purchaser or purchasers, the judges either in or out of
court, shall execute to them a deed or deeds of conveyance ; and the
said county courts shall, as soon as may be, cause suitable buildings
to be provided for the accommodation of the several courts, which
may be directed to be holden in said county, and when the same shall
be provided, the courts for such county shall be holden thereat ; but
until the same shall be provided, the courts shall be held at the present
county seat.
Sec. 4. Be it further enacted. That the commissioners aforesaid,
may meet and adjourn from time to time, until they shall have com-
pleted their business, as herein provided, after the day fixed on for
their first meeting, by the first section of this act, but unless a majority
of them shall concur and sign the return to the coindy court, the same
shall not be received and entered of record : Provided however, that the
said commissioners shall not delay making their report longer than
six months after their first meeting. This act to take effect from and
after the passage thereof.
Samuel Omelvany,
Speaker of the House of Representatives, pro tempore.
Pierre Menard,
President of the Legislative Council.
Approved — December 26, 1816.
Ninian Edwards.
laws of 1816—1817 237
An Act for the relief of Augustin Penceneau and Adelaide his wife.
WHEREAS Jean F. Perry died possessed of a certain mill on
the creek called Prairie dn Pont, in the county of St. Clair, and
whereas the said mill has descended by the death of the said Perry to
his wife, and surviving' relict Adalaide, who has since intermarried
with the 'aforesaid Augustin Penceneau, and whereas it is considered
doubtful whether said mill is established according to law, and at-
tempts are now making to have the same demolished, and whereas
this Legislature is satisfied of the injustice of such attempts and of
the anxiety of a large portion of the inhabitants adjacent to the said
mill for its remaining in full and undisturbed operation :
Be it therefore enacted by the Legislative Council and House of
Representatives of Illinois territory, and it is hereby enacted by the
authority of the same, that the mill heretofore established and erected
on the Praire du Pont creek, in the county of St. Clair, and which is
now in possession of Augustin Penceneau and Adalaide his wife, be,
and the same is hereby declared to be legally established, and shall
require no order of any court or other tribunal, and that this act shall
be a bar to any proceedings now depending, or which may hereafter
be commenced; the object of which shall be either a partial or entire
demolition of said mill.
Sec. 2. Be it further enacted, That the said mill shall be under
the same regulations and restrictions as other mills are, that are duly
established by order of any court having power to established the same :
Provided however, that nothing in this act contained shall be so con-
strued as to authorise the said Penceneau to raise the dam of said
mill any higher than it now is, or has heretofore been. This act to
take effect from and after the passage thereof.
Seth Gard,
Speaker of the House of Be preventatives, pro tempore.
Pierre Menard,
President of the Legislative Council.
Approved — December 26, 1816.
Ninian Edwards.
238 ILLINOIS HISTORICAL COLLECTIONS
An Act to prevent attornies at law residing in the state of Indiana
from practicing in the courts in this territory.
WHEREAS by a law now in force in the state of Indiana,
persons who do not reside therein (although qualified according to
the laws of their own state or territory) are not permitted to practice
in the courts of the said state, and whereas that restriction is illiberal,
unjust and contrary to those principles of liberality and reciprocity
by which each and every state or territorj^ should be goverened :
Therefore,
Be it enacted by the Legislative Council and House of Representa-
tives of the Illinois territory and it is hereby enacted by the author-
ity of the same, that no person residing in the state of Indiana, shall
hereafter be permitted to practice as counsellor or attorney at law
in any of the courts of this territory.
Sec. 2. And be it further enacted, That if any person residing
in the state of Indiana who has heretofore obtained licence, or has
been admitted to practice law in any of the courts of this territory,
shall attempt hereafter to practice in any of the said courts either by
marking his name to any suit on the docket of any such court, filing
his warrant of attorney therein, or in any way attempting to avail
himself of the privileges of attorney of any such court, he shall be
subject to a fine of two hundred Dollars, to be recovered by any person
on motion in the court in which such an attempt to practice shall have
been made ; and the said court shall have power on motion as afore-
said, to enter judgment for the said fine, one half to the use of the
territory and the other to the use of the person sueing for the same :
Provided however, that if any practising attornej^ residing in the said
state, has been retained as council in any case now pending in any
of the courts of this territory, he shall be permitted to appear in any
such case, and attend it to its final termination.
Sec. 3. And be it further enacted, That if any court in this
territory shall knowingly suffer or permit any person residing in the
said state of Indiana, to practice as counsellor or attorney at law,
in any of the courts in this territory, such court whether it be com-
posed of one or more judges, shall be liable to pay five hundred Dol-
lars, which may be recovered by action of debt, qui tarn, in any court
of this territory having competent jurisdiction.
This act shall take effect and be in force from and after the first
day of March next, and shall continue in force until the laws of the
laws of 1816—1817 239
state of Indiana herein before referred to shall be repealed, and no
longer. ■
Geo. Fisher,
Speaker of the House of Representatives.
Pierre Menard,
President of the Legislative Council.
Approved — December 21, 1816.
Ninian Edwards.
An Act to alter a part of the lines between the counties of
Gallatin and Pope.
Be it enacted by the Legislative Council and House of Represen-
tatives of the Illinois territory, and it is hereby enacted by the author-
ity of the same. That the line dividing the counties of Gallatin and
Pope, as established by the act passed at the last session of the gen-
eral assembly, entitled an act to erect a new county out of the counties
of Gallatin and Johnson, be, and the same is hereby altered as fol-
lows, to wit : Beginning at the Rock and Cave on the Ohio river,
thence a straight line to the corner of townships number ten and
eleven south, and of ranges number seven and eight, east of the third
principal meridian; thence west along the line between townships
number ten and eleven south twenty-four miles; and thence with the
lines established by the said recited act, to the Ohio river, and up
the same to the beginning ; and that all the tract of country included
in the lines of Pope county hj this act, shall be attached to and form
a part of Pope county.
This act to be in' force -from an after the passage thereof.
Geo. Fisher,
Speaker of the House of Representatives.
Pierre Menard,
President of the Legislative Council.
Approved — December 26, 1816,
Ninian Edwards.
An Act to incorporate the President, Directors and Company
of the Bank of Illinois.
Be it enacted by the Legislative Council and House of Represen-
tatives of the Illinois territory, and it is hereby enacted by the author-
ity of the same, That a Bank shall be established at Shawnoetown,
240 ILLINOIS HISTORICAL COLLECTIONS
the capital stock whereof shall not exceed three hundred thousand
dollars, to be divided into shares of one hundred dollars each, one
third thereof to remain open to be subscribed by the Legislature of
this territory, or state, when a state government shall be formed,
which territory or state shall be entitled to such part of the dividend
of the said corporation in proportion to the amount actually sub-
scribed by such territory or state, which one third shall be divided
into shares of one hundred dollars each, in the same manner as the
individual stock is divided, and that subscriptions for constituting
the said stock shall on the first Monday in January next, be opened
at Shawnoetown and at such other places as may be thought proper
under the superintendance of such persons as shall hereafter be
appointed, which subscriptions shall continue open until the whole
capital stock shall have been subscribed for: Provided however, that
so soon as there shall be fifty thousand dollars subscribed for in the
whole, and ten thousand thereof actually paid in, the said corporation
may commence business and issue their notes accordingly.
Sec. 2. Be it further enacted, That it shall be lawful for any
person, or partnership, or body politic to subscribe for such or so
many shares as he, she or they may think fit, nor shall there be more
more than ten shares subscribed for in one day by any person, or
co-partnership or body politic for the first ten days after opening
said subscriptions. The payments of the said subscriptions shall be
made by the subscribers respectively, at the time and manner follow-
ing, that is to say, at the time of subscribing there shall be paid
into the hands of the person appointed to receive the same, the sum
of ten dollars in gold or silver on each share subscribed for, and the
residue of the stock shall be paid at such times and in such instal-
ments, as the directors may order ; Provided, that no instalment
shall exceed twenty-five per cent, on the stock subscribed for, and that
at lease sixty days notice be given in one or more public newspapers
of the territory : And Provided also, that if any subscriber shall
fail to make the second payment at the time appointed by the Direc-
tors for such payment to be made, shall forfeit the sum so by him.
her or them first paid, to and for the use of the corporation.
Sec. 3. Be it further enacted, That all those who shall become
subscribers to the said bank, their successors and assigns, shall be and
they are herebj^ enacted and made a corporation and body politic by
the name and style of "The President, Directors and Company of
laws of 1816—1817 241
the Bank of Illinois," and shall so continue until the first day of
January, one thousand eight hundred and thirty-seven, and by that
name shall be and are hereby made able and capable in law to have,
purchase, receive, possess, enjoy and retain, to them and their suc-
cessors, lands, rents, tenements, hereditaments, goods, chattels and
effects of what kind, nature or quality soever to an amount not ex-
ceeding in the whole five hundred thousand dollars including the
capital stock aforesaid, and the same to grant, demise, alien, or dispose
of, to sue and be sued, plead and be impleaded, answer and be an-
swered, defend and be defended in courts of record or any other
place whatever; and also to make, have and use a common seal, and
the same to break, alter and renew at pleasure, and also to ordain,
establish and put in execution, such bye laws, ordinances and regu-
lations as they shall deem necessary and convenient for the govern-
ment of the said corporation, not inconsistent with the laws of the
territory or constitution, and generally to do, perform and execute
all and singular acts, matters and things which to them it shall or
may appertain to do, subject however to the rules, regulations, limita-
tions and provisions hereinafter prescribed and declared.
Sec. 4. Be it further enacted, That for the well ordering of
the affairs of the said corporation there shall be twelve Directors, the
first election for whom shall be by the stock holders, by plurality of
votes actually given, on such day, as the persons appointed to super-
intend the subscriptions for stock shall appoint, by giving at least
thirty days previous notice in all the public newspapers of the terri-
tory, and those who shall be duly chosen at any election, shall be
capable of serving as directors by virtue of such choice, until the full
end and expiration of the first Monday in January next ensuing the
time of such election, and no longer; and on the said first Monday
of January in each and every year thereafter, the election for Direct-
ors shall be holden, and the said Directors at their first meeting after
each election shall choose one of their number as President.
Sec. 5. Be it further enacted, That in case it should happen at
any time that an election for Directors should not be had upon any
day, when pursuant to this act it ought to have been holden, the
corporation shall not for that cause be considered as dissolved, but it
shall be lawful to hold an election for Directors on any other day,
agreeably to such bye laws and regulations as may be made for the
government of said corporation, and in such case the Directors for
242 ILLINOIS HISTORICAL COLLECTIONS
the time being shall continue to executeand discharge the several duties
of directors until such election is duly had and made ; any thing in
the fourth section to the contrary notwithstanding: And it is further
provided, that in case of death, resignation, or removal of any Direct-
or or Directors, the vacancy shall be filled by election for the balance
of the year.
Sec. 6. Be it further enacted, That a majority of the Directors
for the time being, shall have power to appoint such officers, clerks
and servants under them, as shall be necessary for executing the
business of the said corporation, and to allow them such compensation
for their services respectively as shall be reasonable, and shall be ca-
pable of exercising such other powers and authorities for the well
governing and ordering of the affairs of the said corporation as shall
be prescribed, fixed and determined by the laws, regulations and ordi-
nances of the same : Provided always, that a majority of the whole
number of Directors shall be requisite in the choice of a President
and Cashier.
Sec. 7. And be it further enacted, That the following rules,
restrictions, limitation and provisions, shall form and be the funda-
mental articles of the constitution of the said corporation, to-wit :
The number of votes to which the stockholders shall be entitled in
voting for Directors, shall be according to the number or shares he,
she or they respectively hold in the proportions following, that is to
say, for one share and not more than two shares one vote, for every
two shares above two, and not exceeding ten, one vote for
every four shares above ten and not exceeding thirty one vote,
for every six shares above thirty and not exceeding sixty one vote;
for every eight shares above sixty and not exceeding one hundred,
one vote, for every ten shares above one hundred, one vote ; and
after the first election, no share or shares shall confer a right of
voting, which shall not have been holden three calendar months
previous to the day of election.
2. The governor of the state or territory is hereby appointed
agent for the legislature, to vote for President, Directors and Cashier
of said Bank, and is hereby entitled to exercise the right of voting
for the same in proportion to the number of shares actually subscribed
for by the Legislature, in the same ratio that individuals, or other
bodies politic or corporate are entitled to vote for ; and the said agent
hereby appointed, shall exercise the power hereby vested in him
laws of 1816—1817 243
until the legislature shall make other regulations respecting the same,
and no longer.
3. None but a bona fide stockholder, being a resident citizen of
the territory shall be a director ; nor shall a director be entitled to
any other emolument than such as shall be allowed by the stockholders
at a general meeting, but the directors may make such compensa-
tion to the president for his extraordinary attendance at the bank,
as shall appear to them reasonable and just.
4. Not less than four Directors shall constitute a board for the
transaction of business, of whom the President shall always be one,
except in case of sickness, or necessary absence, in which case, his
place may be supplied by any other director, whom he, by writing
under his hand may depute for that purpose.
5. Any number of stockholders, not less than fifteen, who shall
be proprietors of not less than fifty shares, shall have power to call
a general meeting of the stockholders, for purposes relative to the
institution, by giving at least thirty days notice in one or more of
the public newspapers of the territory, specifying in such notice the
object or objects of such meeting, and may moreover appoint three
of their members as a committee to examine into the state, and con-
dition of the bank; and the manner in which its affairs have been
conducted. Provided, that no member of such committee shall be a
director, president or other officer of any other bank.
6. Every Cashier before he enters upon the duties of his
office, shall be required to give bond with two or more sureties to
the satisfaction of the directors, in a sum not less than ten thousand
Dollars, conditioned for his good behaviour, and the faithful per-
formance of his duties to the said corporation, and the other officers
and servants shall also enter into bond and security in such sum
as the president and directors may prescribe.
7. The lands, tenements, and hereditaments which it shall be
lawful for the said corporation to hold, shall be only such as shall
be requisite for its immediate accommodation in relation to the con-
venient transaction of its business, and such as shall have been bona
fide mortgaged to it by way of security, or conveyed to it in satisfac-
tion of debts previously contracted in the course of its dealings, or
purchased upon judgments which shall have been obtained for such
debts.
8. The total amount of debts which the said corporation shall at
244 ILLINOIS HISTORICAL COLLECTIONS
any time owe, whether by bond, bill, note or other contract, shall not
exceed twice the amount of their capital stock actually paid over,
and above the monies then actually deposited in the bank for safe
keeping; and in case of excess, the directors under whose ad-
ministration it shall happen, shall be liable for the same in
their natural and private capacities, and an action of debt may be
brought against them, or any of them, their or any of their heirs, exe-
cutors or administrators in any court competent to try the same, or
either of them, by any creditor or creditors of the said corporation ;
but this provision shall not be construed to exempt the said corpo-
ration, or the lands, tenements, goods or chattels of the same from
being liable for, and chargeable with the said excess ; such of the said
directors who may have been absent, when the said excess was con-
tracted or created, or who may have dissented from the resolution, or
act whereby it was contracted or created, may respectively exonerate
themselves from being so liable, b}T forthwith giving notice of the fact
and of their absence or dissent at a general meeting of the stockholders
which they shall have power to call for that purpose.
9. The said corporation shall not directly or indirectly deal or
trade in any thing except bills of exchange, gold or silver, or in the
sale of goods, really and truly pledged for money lent and not legally
redeemed in due time, or of goods which shall be the produce of its
lands, neither shall the said corporation take more than at the rate
of six per cent, per annum, for or upon its loans or discounts.
10. The shares of the capital stock of the said corporation shall
be assignable and transferable at any time, according to such rules
as shall be established in that behalf, by the laws and ordinances of
the same ; but no stock shall be transferred, the holder thereof being
indebted to the Bank, until such debt be satisfied, except the Presi-
dent and Directors shall otherwise order it.
11. The bills obligatory and of credit under the seal of the
said corporation, which shall be made payable to any person or per-
sons, shall be assignable by an endorsement thereupon, shall possess
the like qualities as to negotiability, and the holders thereof shall
have and maintain the like actions thereon as if such bills obligatory
and of credit, had been made by or on behalf of a natural person,
and all bills or notes which may be issued by order of the said corpora-
tion, signed by the President and countersigned by the principal
Cashier or treasurer thereof, promising the payment of money to any
laws of 1816—1817 245
person or persons, his, her or their order or to bearer, though not
under the seal of the said corporation, shall be binding and obliga-
tory upon the same, in like manner and with like force and effect,
as upon any private person or persons, if issued by him, her or them,
in his, her or their private or natural capacity or capacities, and shall
be assignable and negotiable in the like manner as if they were so
issued by such private person or persons, that is to say, those which
shall be payable to any person or persons, his, her or their order, shall
be assignable by endorsement, in like manner and with like effect, as
bills of exchange now are ; and those which are payable to bearer,
shall be assignable and negotiable by delivery only.
12. Half yearly dividends shall be made of so much of the
profits of the bank, as shall be deemed expedient and proper, and
once in every three years, the directors shall lay before the stockholders
at a general meeting, an exact and particular statement of the debts
which shall have remained unpaid, after the expiration of the origi-
nal credit, for a period of treble the time of that credit, and the sur-
plus of profit, if any, after deducting losses and dividends. If there
shall be a failure in the payment of any part of any sums subscribed
to the capital of said Bank, the party failing shall loose the dividend
which may have accrued prior to the time of making such payment
during the delay of the same.
Sec. 8. And be it further enacted, That the said corporation
shall not at any time suspend or refuse payment in gold and silver
of any of its notes, bills or obligations, nor of any monies received
upon deposit in said Bank, or in its office of discount and deposit ; and
if the said corporation shall at any time refuse or neglect to pay on
demand, any bill, note or obligation issued by the corporation accord-
ing to the contract, promise or undertaking therein expressed, or
shall neglect or refuse to pay on demand any monies received in said
bank, or in its office aforesaid on deposit, to the person or persons
entitled to receive the same, then and in every such case, the holder of
any such note, bill or obligation, or the person or persons entitled to
demand and receive the same, shall recover interest on the said bills,
notes, obligations or monies until the same shall be fully paid and
satisfied, at the rate of twelve per centum per annum, from the time
of such demand as aforesaid : Provided, that the Legislature of this
territory may at any time hereafter enact laws to enforce and regu-
late the recovery of the amount of the notes, bills, obligations or
246 ILLINOIS HISTORICAL COLLECTIONS
other debts, of which payment shall have been refused as aforesaid,
with the rate of interest above mentioned; vesting jurisdiction for
that purpose in an}7 courts either in law or equity, within this
territory.
Sec. 9. Be it further enacted, That John Marshall, David
Apperson, Samuel Hays, Leonard White and Samuel R. Campbell,
or any three of them, shall be commissioners for the purpose of receiv-
ing subscriptions, and who shall have power to appoint a person to
receive the money required to be paid at the time of subscribing and
the said receiver shall as soon as the directors are appointed, pay over
the same into the hands of such person as the directors may direct.
Sec. 10. Be it further enacted, That the aforesaid corporation,
shall not be dissolved previous to the expiration of their charter, nor
until their debts, contracts, notes, bills of exchange and undertakings
in their corporate capacity, shall be finally and faithfully settled :
Provided also, that after the expiration of their charter, they shall
not transact business according to the true intent and meaning of this
act, further than to settle and close their contracts as above provided.
This act to take effect from and after its passage.
Willis Hargrave,
Speaker of the House of Representatives, pro tempore.
Pierre Menard,
President of the Legislative Council.
Approved — December 28, 1816.
Ninian Edwards.
An Act supplemental to an* act, entitled "An act concerning
Executions."
WHEREAS, It appears to this Legislature that gold and silver
coin are so scarce in this territory, that it is utterly impossible for
the citizens thereof at present to pay their debts in those metals ; and
that attempts to enforce such payments by legal execution, besides
the immense sacrifices of property that would result therefrom, would
produce many other distressing consequences : For remedy whereof,
Be it enacted by the Legislative Council and House of Repre-
sentatives of the Illinois territory, and it is hereby enacted by the
same. That upon all executions which now are, or hereafter may be
issued upon any judgment or judgments, replevy bond or replevy
bonds, which have heretofore been, or may hereafter be recovered or
laws or 1816—1817 247
given, the defendant or defendants shall be permitted to replevy the
same for twelve months, upon executing bond in double the amount
of any such execution, with sufficient security or securities to the
sheriff of the county, conditioned for the payment of the amount of
such execution, with all legal interest on the same, together with all
costs that may accrue thereupon, unless the plaintiff or plaintiffs shall
previous to the taking of any such replevy bond, as is herein author-
ised, give a written authority to the sheriff to receive in discharge of his
execution bank notes of any of the chartered banks of Cincinnati
and Chillicothe, in the state of Ohio, and of any of the banks of the
states of Tennessee and Kentucky, and of the banks of Vincennes,
of Missouri, of St. Louis, and of Illinois, in which case, no other
replevin shall be allowed than that which is now prescribed by law.
Provided however, That nothing herein contained, shall deprive any
defendant or defendants who shall exercise that right, to replevy
again under this law.
Sec. 2. Be it further enacted, That the same proceedings may
be had upon the replevy bonds hereby authorised, that might or
could be had upon replevy bonds heretofore allowed ; and the sheriff
shall be entitled to the same fees for his services as are allowed upon
other replevy bonds.
Sec. 3. This act to commence on the date hereof and to continue
in force for one year and no longer.
Willis Hargrave,
Speaker of the House of Representatives, pro tempore.
Pierre Menard,
President of the Legislative Council.
Approved — December 28, 1816.
Ninian Edwards.
An Act for the division of Edwards County.
Be it enacted by the Legislative Council and House of Repre-
sentatives of the Illinois territory, and it is hereby enacted by the
authority of the same, That all that tract of country within the fol-
lowing boundaries, to-wit : Beginning at the mouth of the Embarras,
and running with said river to the intersection of the line dividing
townships number three and four, north of range eleven, west of
the second principal maridian ; thence west with said township line
to the meridian, and due north until it strikes the line of Upper
248 ILLINOIS HISTORICAL COLLECTIONS
Canada ; thence to the line that separates this territory from the
state of Indiana, and thence south with said dividing line to the begin-
ning, shall constitute a separate county to be called Crawford; and
the seat of justice for said county, shall be at house of Edward N
Cullom, until it shall be permanently established in the following
method, that is ; three persons shall be appointed, to wit : John Dun-
lap, Thomas Handy and Thomas Kenedy, which said commissioners,
or a majority of them, being duly sworn before some judge or justice
of the peace of this territory to faithfully take into view the situation
of the settlements, the geography of the country, the convenience of
the people, and the eligibility of the place, shall meet on the second
Monday in March next, at the house of Edward N. Cullom, and pro-
ceed to examine and determine on the place for the permanent seat
of justice, and designate the same : Provided, the proprietor or pro-
prietors of the land shall give to said county, for the purpose of
erecting public buildings, a quantity of land at said place, not less
than twenty acres, to be laid out in lots and sold for the above pur-
pose. But should the said proprietor or proprietors refuse or neglect
to make the said donation aforesaid, then and in that case, it shall be
the duty of the commissioners to fix upon .some other place for the
seat of justice as convenient as may be to the different settlements in
said county ; which place when fixed and determined on, the said
commissioners shall certify under their hands and seals, and return
the same to the next county court, in the county aforesaid; and as a
compensation for their services, they shall each be allowed two dollars
for every day they may be necessarily employed in fixing the aforesaid
seat of justice, to be paid out of the county levy ; which said court
shall cause an entry thereof to be made on their records.
Sec. 2. And be it further enacted, That the said county of
Crawford is hereby allowed one representative in the house of rep-
resentatives of this territory, who shall be elected agreeably to law, and
be entitled to all the immunities, powers and privileges prescribed
by law to members of the house of representatives. An election is
hereby directed to be held at the house of said E. N. Cullom, in the
said county, on the first monday in March next, and continue open
three days ; and to be conducted in all other respects by the persons
and in the manner prescribed by law : At which said election, the
persons entitled to vote may elect a representative to the house of rep-
resentatives, who shall continue in office until the tenth day of October,
laws of 1816—1817 249
eighteen hundred and eighteen, and shall during his continuance
in office, be bound to perform the duties, and be entitled to the same
privileges and immunities that are prescribed by law to a member of
the house of representatives.
Sec. 3. Be it further enacted, That the citizens of said county
entitled to vote, may at any election for a member of the legislative
council to represent said district, proceed to vote for such member ;
and it shall moreover be the duty of the sheriff of the said county of
Crawford, within ten days after the close of said election, to attend
at the court house of the county of White, with a statement of the
votes given in the said county of Crawford, and to compare the polls
of the respective counties; and it shall be the duty of the sheriffs of
Gallatin, White and Edwards counties to attend at such time and
place with a statement of the votes of Gallatin, White and Edwards
counties, and upon counting the votes of the respective counties, it
shall be the duty of the said sheriffs of Gallatin, White, Edwards
and Crawford counties, to make out and deliver to the person duly
elected a certificate thereof. If the said sheriffs or either of them,
shall refuse or fail to perform the duty required of them by this
section, such delinquent shall forfeit and pay the sum of two hun-
dred dollars, to be recovered by action of debt or indictment, one
half to the territory, and the other half to any person, sueing for the
same.
Sec. 4. Be it further enacted, That the citizens of the county
of Crawford are hereby declared to be entitled in all respects to the
same rights and privileges in the election of a delegate to congress,
as well as a member to the house of representatives of the territory,
that are allowed by law to the other counties of the territory ; and
all elections are to be conducted at the same time, and in the same
manner, except as is excepted by this law, as is provided for other
counties. This act shall commence and be in force from after the
passage thereof.
Seth Gard,
Speaker of the House of Representatives, pro tempore.
Pierre Menard,
President of the Legislative Council.
Approved — December 31, 1816.
Ninian Edwards.
250 ILLINOIS HISTORICAL COLLECTIONS
An Act supplemental to an act entitled "An act for the relief of
persons imprisoned for Debt."
Be it enacted by the Legislative Council and House of Repre-
sentatives of the Illinois territory, and it is hereby enacted by the
authority of the same, that whenever any person is in actual confine-
ment on final process in any civil action where the cause of imprison-
ment is the failure to pa}^ the amount of any judgment rendered
against him, such person, shall have a right to give actual notice to all
his creditors by writing, if they reside in the territory, or by adver-
tising in any newspaper printed in the territory, if they or any of
them reside out of the territory, which last mentioned notice shall be
alone sufficient in all cases, that he will on some special day, not less
than twenty days after giving such notice, apply either to the county
court at its next term, or to some judge thereof in vacation, to take
the benefit of the ''act concerning insolvent debtors."
Sec. 2. And be it further enacted, That such person so confined
as aforesaid, shall have the right of giving notice to any judge of the
county court to attend at the court house on any day that such
person may name to hear what may be urged in behalf of his libera-
tion, and it shall be the duty of such judge to attend on such day
named ; and it shall be the duty of such court or judge in vacation to
proceed to hear and determine on the case before them, according to
the directions of the said recited act ; and it shall be the duty, of the
person applying, to proceed previous to his liberation, in all respects
as is prescribed by the law to which this is a supplement, except so far
as is altered by this act; and any person thus liberated, shall
stand in the same situation as if he had been released by legal sen-
tence under the provisions of the said act to which this is a supplement.
Sec. 3. And be it further enacted, That it shall be the duty of
the clerk of said court, to attend at the court house on the day so
appointed, and make a record of the proceedings as though the same
were a special session of the said court, who shall be entitled to receive
therefor, one dollar and fifty cents ; and the said judge shall receive
the sum of two dollars therefor out of the county treasury of their
county ; and it shall be the duty of the jailor upon receiving notice
from said judge, to bring such prisoner before him, and either recom-
laws of 1816—1817 251
mit or discharge him as the judge may direct. This act to take effect
from and after its passage.
Seth Gard,
Speaker of the House of Representatives, pro tempore.
Pierre Menard.
Approved — January 1, 1817. President of the Legislative Council.
Ninian Edwards.
An Act to establish Inspections within this Territory.
Be it enacted by the Legislative Council and House of Repre-
tatives of the Illinois territory, and it is hereby enacted by the author-
ity of the same, that public ware houses may be kept at the several
places which may be pointed out by the judges of the county courts
in each county for an inspection of beef, pork, hemp, flour, and
tobacco.
Sec. 2. And be it further enacted, That there shall be kept at
the several ware houses that may be established, a good and sufficient
pair of scales, sufficient to weigh eighteen hundred weight at least, and
a set of small weights, such as ought to be, according to the standard
weight of the county, and that the proprietors of each ware house
provide the same.
Sec. 3. And be it further enacted, That all beef, tobacco, hemp
and flour brought to any of the public ware houses, shall be viewed,
inspected and examined, by two persons thereunto appointed by the
different county courts for each county, and it shall be the duty of
the courts aforesaid to appoint such inspectors, when in their opinion
it may be thought necessary, and it shall be the duty of the aforesaid
county courts to nominate three fit persons for inspectors at each of
their several ware houses within their respective counties, the two first
in the nomination shall be considered as the acting inspectors for the
ensuing year, and in case of sickness, or death or inability in either
of the two first inspectors, the third shall act, and on the disagreement
of the said inspectors, the third shall be called in to decide on such
articles subject to inspection ; and the said judges shall have power
on complaint in writing being lodged in the office of the clerk of the
county, at their first term after such notice to them given to sum-
mon the inspector or inspectors before them, and the court shall have
power to continue or dismiss from office him or them, as the case may
be, and as the court shall judge just; and such court shall fill all
252 ILLINOIS HISTORICAL COLLECTIONS
vacancies which may happen at any time during the remainder of the
year; and every such inspector so appointed by virtue of this act
before he enters into the execution of his office, shall give bond with
approved security in the penal sum two hundred dollars, payable to
the governor or his successors in office, conditioned for the true and
faithful performance of his duty according to the conditions of this
act, which said sum shall be recovered by action of debt before the
circuit court for any wilful or flagrant breach of duty ; which bond
shall be given or entered into before the county court and lodged in
the clerk's office of the county.
Sec. 4. And be it further enacted, That all inspectors to be ap-
pointed by this act, shall attend at the different ware houses to which
they are appointed, on the application of any person who wishes to
have his beef, pork, flour or tobacco to be inspected, Sunday excepted,
and every inspector neglecting to attend as aforesaid, shall forfeit
and pay to the part}r aggrieved, five dollars to be recovered before any
justice of the peace in the proper county. And the said inspectors
shall inspect every article that comes within the perview of this act,
in such a manner that may be fully satisfied, that each article so in-
spected shall completely answer in quality to the mark or brand by
them made, which shall be marked on the barrel or hogshead, if flour,
the letters S. F. for super-fine, and the letter F. for fine, with the gross
weight and nett weight marked in figures on the said barrel, if tobacco
or pork or beef, the weight in gross and nett marked on the head of
said hogshead or barrel.
Sec. 5. And be it further enacted, That the rates of inspection
and storage of the several articles so inspected shall be fixed by the
several county courts at their first or second courts in every year.
Sec. 6. And be it further enacted, That each hogshead of tobacco
shall weigh not less than nine hundred and fifty weight, or exceed
eighteen hundred nett, and the barrel of flour shall weigh one hun-
dred and ninety-six pounds nett weight, and each barrel of pork and
beef shall weigh not less than two hundred pounds nett weigh each.
Sec. 7. And be it further enacted. That it shall be the duty of
the several inspectors under this act, to enter in a book by them kept
for that purpose, the mark, number and weight of the several hogs-
heads and barrels by them inspected, together with the name of the
inspector and ware house where such inspection was had.
Sec. 8. And be it further enacted, That each and every inspectors
laws of 1816—1817 253
appointed by virtue of this act, before they enter on the duties of
their respective offices, shall be sworn before the clerk of the county
court by which they were appointed, that they will faithfully dis-
charge the duties of their office without partiality, favor or affection.
Sec. 9. And be it further enacted, That it shall be the duty of the
several inspectors appointed by this act, to furnish the owner or pro-
prietor of any of the above mentioned articles with a certificate of
the mark, number and weight of the several articles by them inspected,
and to attest such certificate.
Sec. 10. And be it further enacted, That this act shall take effect
and be in force from and after the passage thereof.
Geo. Fisher,
Speaker of the House of Representatives.
John G. Lofton,
President of the Legislative Council pro tempore.
Approved — January 4, 1817.
Ninian Edwards.
An Act to regulate the practice in certain cases.
Be it enacted by the Legislative Council and House of Representa-
tives of the Illinois territory, and it is hereby enacted by the authority
of the same, that in any action commenced, or which may hereafter
be commenced, in any court of law in this territory upon any note,
bond, bill or any other instrument of writing for the payment of
money or property, or for the performance of covenents or conditions,
if such note, bond, bill, or instrument of writing was made or entered
into without a good or valuable consideration, or if the consideration
upon which such note, bond, bill or instrument of writing was made
or entered into has wholly, or in part failed, it shall be lawful for the
defendant or defendants against whom such action shall have been
commenced, to plead such want of consideration, or that the considera-
tion, upon which such note, bond, bill or instrument of writing was
made or entered into, has wholly or in part failed ; and if it shall ap-
pear that any such note, bond, bill or instrument of writing, was made
or entered into without a good or valuable consideration, or that the
consideration has wholly failed, the verdict shall be for the defen-
dant; and if it shall appear that the consideration has failed in part,
the plaintiff shall recover according to the equity of the case.
254 ILLINOIS HISTORICAL COLLECTIONS
Tliis act to be in force from and after its passage.
Geo. Fisher,
Speaker of the House of Representatives.
John G. Lofton,
President of the Legislative Council, pro tempore.
Approved — January 4, 1817.
Ninian Edwards.
An Act forming a new county out of the county of Madison.
Be it enacted by the Legislative Council and House of Repre-
sentatives of the Illinois territory, and it is hereby enacted by the
authority of the same, that all that tract of country within the follow-
ing boundaries, to-wit : Beginning at the south west corner of town-
ship number three north of range four west, thence east to the south
east corner of township number three north, of range number one east,
to the 'third principal meridian line; thence north to the boundary
line of the territory; thence west with said boundary line so far that
a south line will pass between ranges four and five west ; thence south
with said line to the beginning, shall constitute a separate county,
to be called Bond; and the seat of justice for said county shall be at
Hill's fort, until it shall be permanently established in the following
manner, that is to say, there shall be five persons appointed, to-wit : —
William Roborts, John Powers, Robert Gillaspie, John Whitley,
senior and John Loston, who or a majority of them, being duly sworn
before some judge or justice of the peace of this territory, to faith-
fully take into view the situation of the settlements, the geography
of the county, the convenience of the people, and the eligibility of the
place, shall meet on the first Monday in March next at Hill's fort on
Shoal creek, and proceed to examine and determine on the place for
the permanent seat of justice, and designate the same : Provided,
that the proprietor or proprietors of the land shall give to the said
county for the purpose of erecting public buildings, a quantity of land
at the said place not less than twenty acres, to be laid off in lots and
sold for the above purpose, but should the said proprietor or pro-
prietors refuse or neglect to make the donation aforesaid, then and in
that case it shall be the duty of the commissioners to fix upon some
other place for the seat of justice, as convenient as may be to the pres-
ent and future settlements of said county, or should the said commis-
laws of 1816—1817 255
sioners fix it upon lands belonging to the United States, in that case,
the judges of said county or any two of them may apply to the Regis-
ter of the land office for their district, and in behalf of the county
purchase one quarter section for the use of the county, and the seat
of justice shall be established thereon, and the county shall be bound
for the purchase money ; which place when fixed upon and deter-
mined, the said commissioners shall certify under their hands and
seals, and return their certificate of the same to the next county court
in the county aforesaid; and as a compensation for their services
they shall each be allowed two dollars for every clay they may be
necessarily employed in fixing the aforesaid seat of justice, to be
paid out of the county levy, which said court shall cause an entry
thereof to be made on their records.
Sec. 2. Be it further enacted, That the citizens of Madison
and Bond counties, that are entitled to vote, may at any election for a
member of the legislative council and house of representatives to rep-
resent said district, proceed to vote at their respective seats of justice
for such members ; and it shall moreover be the duty of the sheriff of
the said county of Bond, within ten days after the close of said elec-
tion, to attend at the court-house of the county of Madison with a
statement of the votes given in the said county of Bond, to compare
the polls of the respective counties ; and it shall be the duty of the
sheriffs of Madison and Bond to attend at such time and place with
a statement of the votes of Madison and Bond counties, and upon
counting the votes of the said counties, it shall be the duty of the
sheriffs of Madison and Bond counties to make out and deliver to the
persons duly elected a certificate thereof. If the said sheriffs or either
of them shall refuse or fail to perform the duty required of them by
this section, such delinquent shall forfeit and pay the sum of two
hundred dollars, to be recovered by action of debt or indictment, one
half to the use of the territory, the other half to the person sueing for
the same.
Sec. 3. Be it further enacted. That the citizens of the said
county of Bond, are hereby declared to be entitled in all respects to the
same rights and privileges in the election of a delegate to congress
of this territory, that are by law allowed to other counties of this
territory; and all elections are to be conducted at the same time and
in the same manner as is provided for other counties. This act shall
256 ILLINOIS HISTORICAL COLLECTIONS
commence and be in force from and after its passage.
Geo. Fisher,
Speaker of the House of Representatives.
Pierre Menard.
President of the Legislative Council.
Approved — January 4, 1817.
Ninian Edwards.
An Act regulating and defining the duties of the United States'
Judges for the Territory of Illinois.
Be it enacted by the Legislative Council and House of Representa-
tives of the Illinois territory, and it is hereby enacted by the authority
of the same, that the Illinois territory shall be divided into three cir-
cuits, in the manner and for the purposes hereinafter mentioned.
Sec. 2. And be it further enacted, That the counties of Bond,
Madison, St. Clair, and Monroe, shall compose the first circuit ; the
counties of Randolph, Jackson, Johnson and Pope, shall compose the
second circuit; the counties of Gallatin, White, Edwards and Craw-
ford, shall compose the third circuit : Provided however, that when a
new county shall at any time hereafter be established, such new
county shall be attached to the Judicial circuit from which the
largest portion thereof may be taken and it shall be the duty of the
Judge, allotted as hereinafter directed, to hold courts in such new
county at such time and place as may be directed by law.
Sec. 3. And be it further enacted, That the judges who are or
shall be appointed for the Illinois territory, under the authority of
the United States, shall previous to the time prescribed by this act,
for holding the first court proceed to allot amongst themselves the
circuits in which they shall respectively preside, which allotment shall
continue in force for and during the term of one year thereafter,
and such allotment shall be annually renewed, and which allotment
in writing, signed by the said judges or a majority of them, shall be
entered of record, in the said courts respectively, by the clerks thereof,
at the commencement of the term next after such allotment shall be,
made: Provided, however, that when any of the said judges
shall be unable to hold the courts within the circuit to which he is
allotted by reason of any disability, it shall be the duty of the judge
allotted to the circuit nearest thereto, to hold the court in such cir-
cuit until the disability of the judge allotted to the circuit shall be
laws of 1816—1817 257
removed, or (in case of death or resignation of a judge) until a suc-
cessor be appointed.
Sec. 4. And be it further enacted, That it shall be the duty of
said judges respectively, to hold three terms in each county annually
in their respective circuits in conformity with the preceding section
of this act, which shall commence at the times hereinafter mentioned,
that is to say, in the county of Bond, on the last Mondays of February,
June and October ; in Madison county on the first Mondays of March,
July and November ; in St. Clair county, on the second Mondays of
March, July and November; in the county of Monroe on the third
Mondays of March, July and November • in Randolph county on the
fourth Mondays of March, July and November ; in Jackson county on
the first Mondays in April, August and December ; in Johnson
county on the second Mondays of April, August and December ; in
Pope county, on the third Mondays in April, August and December ;
in Gallatin county on the fourth Mondays in April, August and
December ; in the county of "White on the first Mondays in May, Sep-
tember and January ; in Edwards county on the second Mondays of
May, September and January ■ in Crawford county on the third Mon-
days of May, September and January.
Sec. 5. And be it further enacted. That the said courts shall be
holden at the respective county seats of justice of said counties, and
the said judges respectively shall in their respective circuits have
jurisdiction over all causes, matters or things, at common law or in
chancery, arising in each of said counties, except in cases where the
debt or demand shall be under twenty dollars, in which cases they
shall have no jurisdiction.
Sec. 6. And be further enacted, That the circuit courts in the
respective counties, shall have power and jurisdiction in all cases of
vagrants, attachments, divorces, motions against public debtors, clerks,
sheriffs, collectors of public monies for the territory, or any county
thereof, and of all matters and things, civil or criminal which the
circuit courts in this territory had and possessed before the passage
of this act, unless in cases specially otherwise provided for by law ;
and the said judges in their respective circuits, shall in term and in
vacation possess the same powers, and perform the same duties in
matters cognizable by the circuit courts, as they held and possessed
the same before the passage of this act, and that the said judges shall
be conservators of the peace; and the circuit courts in term time or
258 ILLINOIS HISTORICAL COLLECTIONS
the judges thereof in vacation, shall have power to award injunctions,
writs of ne exeat, habeas corpus, and all other writs and process that
may be necessary to the execution of the powers with which they are
or may be vested.
Sec. 7. And be it further enacted, That the said circuit courts
respectively, shall have power to hear and determine all treasons,
felonies, and other crimes and misdemeanors that may be committed
within the respective counties, and that may be brought before them
respectively by any rules or regulations prescribed by law; and when
any person charged with felony, shall be committed to prison in any
county within the territory, and there shall be forty days or more
bewteen the time of the commitment and the next term of the circuit
court, directed to be holden in the county in which such person may
be committed, it shall be lawful for the governor of the territory to
issue his writ directed to the judge allotted to the circuit, including
the county where such accused person may be committed, commanding
him to hold a court of oyer and terminer for the trial of the accused ;
and it shall be the duty of the judge to whom said writ is directed,
to hold the court at the seat of justice of the county at such time as
may be specified in such writ, and all process issued, or proceedings
had before the writ shall be issued, shall be returned to the said
court of oyer and terminer.
Sec. 8. And be it further enacted, That all suits shall be tried
in the counties in which they originate, unless in cases that are or may
be specially provided for by law. And executions and other process
may be issued on any judgment or decree of any circuit court, and
be returned according to law.
Sec. 9. And be it further enacted, That if the circuit judge
shall not attend on the first day of any court, or if a quorum of the
court hereinafter mentioned, shall not attend in like manner, such
court shall stand adjourned from day to day, until a court shall be
made, if that shall happen before four o'clock, in the afternoon of the
third clay.
Sec. 10. And be it further enacted, That if either a circuit court,
or the court hereinafter mentioned, shall not set in any term, or shall
not continue to set the whole term, or before the end of the term,
shall not have heard and determined all matters and things depending
in court, the business undetermined shall stand continued until the
next succeeding term.
laws of 1816—1817 259
Sec. 11. And be it further enacted, That if from any cause, either
of the said courts shall not set on any. day in a term after it shall have
opened, there shall be no discontinuance, but so soon as the cause is re-
moved, the court shall proceed to business until the end of the term,
if the business depending before it be not sooner dispatched.
Sec. 12. And be it further enacted, That the judicial term of
the said circuit courts shall consist of six days in each county, during
which time the court shall set, unless the business before it shall be
sooner determined.
Sec. 13. And be it further enacted, That the judge allotted as
aforesaid, to any circuit within the said territory, shall have power to
appoint a clerk to each court within the circuit allotted to him, and to
fill any vacancy occasioned by death, removal from office, or resig-
nation of any clerk, and any clerk so appointed shall at the first term
to be holden in the county, enter into bond with one or more securi-
ties to be approved by the court, to the governor of the territory, and
his successors in office, in the penalty of one thousand dollars, condi-
tioned for the faithful discharge of the duties of his office according
to law ; and to deliver the books, papers, records and proceedings to
his successors in office, whole, safe and undefaced, without sequestra-
tion or omission; which bond shall be transmitted to and filed in the
secretary's office. It shall be the duty of the clerk to issue process in
all causes originating in his county, to keep and preseve the records
of all the proceedings of the court therein, and to do and perform
all the duties which may be enjoined on him by law.
Sec. 14. And be it further enacted, that in the cases depending
in the respective circuit courts in this territory, before the passage of
this act, the parties, or their attornies, or counsellors, shall be per-
mitted to take all such measures for bringing them to trial that might
have been taken, if no change had taken place ; and the said circuit
courts established by this act respectively, shall as far as possible
proceed to the trial thereof, in the manner that' the circuit courts be-
fore the passage of this act might have legally done, had no other
change than a mere alteration of the terms taken place, and all writs,
process and proceedings whatsoever in any court in this territory shall
be considered as continued to and made returnable to the first term
of the circuit court to be holden in the county under this act, and be
proceeded on accordingly, recognizances or other proceedings taken
by justices of the peace or other officers, made returnable heretofore
260 ILLINOIS HISTORICAL COLLECTIONS
to the circuit courts, shall in like manner be returned to, and be pro-
ceeded on as above directed.
Sec. 15. And be it further enacted, That the said judges or a
majority of them, shall constitute a court to be styled, a court of
Appeals for Illinois territory, and shall hold two sessions annually
at Kaskaskia, which shall commence on the second Mondays in June
and October, in every year, and continue in session until the business
before them shall be completed, which court shall have appellate juris-
diction only, except cases arising under the laws of the United States,
and of which provision may be made authorizing them to exercise
such jurisdiction, and to which appeals may be allowed, and from
which writs of error according to the principles of the common law,
and conformably to the laws and usages of this territory, may be prose-
cuted for the reversal of the judgments and decrees, as well of the
said circuit courts, as of any inferior courts, which now are, or which
may hereafter be established by law.
Sec. 16. And be it further enacted. That a clerk shall be ap-
pointed to the said court of appeals, by the said judges or a majority
of them, whose duty it shall be to issue process in all cases brought
before said court where process ought to issue, and keep and preserve
the records of all the proceedings of the said court therein, and to do
and perform all such duties as may be enjoined on him by law; and
the said clerk shall at the first term of the said court after his appoint-
ment, give bond to the governor and his successors in office, with one or
more securities to be approved of by said court, in the penalty of one
thousand dollars, conditioned for the faithful discharge of the duties
of his office, according to law, and to deliver all books, papers records
and proceedings of his office, to his successors in office, whole, safe
and undef aced without sequestration or omission ; which bond shall be
transmitted to, and filed in the secretary's office.
Sec. 17. And be it further enacted, That in all cases depending
in the court of appeals for Illinois territory, before the passage of this
act, the parties or their attornies, or counsellors, shall be permitted to
take all such measures to bring them to a final decision, that might
have been taken if no change had taken place ; and the said court of
appeals established by this act, shall as far as practicable proceed to
the final determination thereof, in the same manner that the court
of appeals heretofore might have legalty done, had no other change
than a mere alteration of the terms taken place, and executions and
laws of 1816—1817 261
other process may be issued on any judgments or decrees of the said
court of appeals, and be made returnable according to law.
Sec. 18. And be it further enacted, That appeals may be prayed,
and writs of error taken out upon matters of law only, in all cases
wherein they are now allowed or may hereafter be allowed by law
to the said court of appeals, and made returnable to the said court
at Kaskaskia ; but no question upon appeal or writ of error shall be
decided without the concurrence of two judges, at least.
Sec. 19. And be it further enacted, That the rules of practice
in civil and in criminal proceedings at law, and the laws and rules
respecting proceedings in chancery, which were exercised by the cir-
cuit courts and court of appeals before the passage of this act, and
not inconsistent with this law, shall be, and are hereby vested in the
circuit courts and court of appeals established by this act, and shall
governor the same, and shall be pursued by parties litigant therein, and
in all cases not provided for by law, the said courts respectively shall
have power to adopt rules and regulations necessary for effectuating
the practice in them respectively, and the said courts in term, and the
judges thereof in vacation shall have full power and authority to
punish contempts which may be offered to them in the exercise of
their official functions, in the same manner as they might or could do
before the passage of this act according to law.
Sec. 20. And be it further enacted, That the clerks of the cir-
cuit courts and court of appeals established before the passage of this
act, shall deliver to the clerks who may be appointed under the pro-
visions of this law, all the books, papers, records and proceedings of
the respective circuit courts which shall appertain to their offices, and
in case of neglect or refusal to do so in a reasonable time after demand
is made, the courts respectively, where such neglect or refusal shall
happen, may on motion or application, or without it, award such
coercise process as may be deemed expedient to enforce the delivery,
according to law.
Sec. 21. And be it further enacted, That the said circuit courts
respectively, shall cause to be procured and used a judicial seal in
each county in the respective circuits, which shall be kept by the
respective clerks, and all writs and process from said court shall be
in the name of the United States, and be sealed with the judicial seal ;
bear teste in the name of the clerk ; be dated on the days which they
issue, and made returnable to the said courts according" to law.
262 ILLINOIS HISTORICAL COLLECTIONS
Sec. 22. And be it further enacted, That it shall be the duty of
the court of appeals in all cases of appeals and writs of error, to state
the cases and the reasons of their opinion at large in writing, which
shall be carefully preserved by the clerk and kept subject to the in-
spection of all who may desire to read the same.
Sec. 23. And be it further enacted, That executions may be is-
sued by the clerks to be appointed under this act, on all judgments
and decrees heretofore rendered by the respective circuit courts and
court of appeals, and be made returnable according to law in the
same manner as if this law had not been passed.
Sec. 24. And be it further enacted, That the clerks of the respec-
tive circuit courts, and the clerk of the court of appeals to be appointed
under this law, shall be entitled to the same fees and emoluments,
and entitled to the same mode of recovery and collection, which the
clerks of the circuit courts, and courts of common pleas, and clerks
of the court of appeals and general court were allowed to have in
similar cases, and shall make complete records in all cases determined
in their respective courts where the title to land shall come in ques-
tion, and they shall keep their office at the places directed by law for
holding their respective courts.
Sec. 25. And be it further enacted, That it shall be the duty of
the sheriff in each county respectively, to attend and execute the pro-
cess and orders of the courts, directed by this law to be held in his
county, and it shall be his duty to summon grand and petit jurors, to
attend the circuit courts and courts of oyer and terminer, to be holden
in his county, in the same manner as the respective sheriffs were re-
quired to do by law before the passage of this act ; and all persons
summoned by the sheriffs to attend as jurors and failing to give their
attendance, shall be subject to the same penalties and be proceeded
against in the same manner as jurors were for like failures before
the passage of this act: Provided nevertheless, that the clerks
that are now in office in the different circuit courts and the court
of appeals in this territory, shall continue in office, and perform
all the duties required by law until there are new clerks appointed
agreeably to the^ provisions of this act. This act to take effect
laws of 1816—1817 263
and be in force from and after the rising of the legislature.
Geo. Fisher,
Speaker of the House of Representatives.
John G. Lofton,
President of the Legislative Council pfo tempore.
Approved — January 6, 1817.
Ninian Edwards.
An Act supplemental to an act entitled, "An act regulating and
defining the duties of the United States' Judges, for the territory
of Illinois."
Be it enacted by the Legislative Council and House of Represen-
tatives of the Illinois territory, and it is hereby enacted by the author-
ity of the same, that the United States' Judges appointed for this
territory, respectively, are hereby empowered to hold circuit courts
at the times prescribed by the act to which this is a supplement,
in the several counties now included within the circuits to which
they have hitherto been allotted, until the court of appeals at their
first session shall otherwise allot, and after which allotment, the said
judges shall be governed by the law to which this is a supplement. — ■
Provided, however, that when any judge shall be unable to attend the
courts in his circuit, it shall be the duty of the judge who is to preside
in the courts next to be holden after the completion of the circuit, in
which such absent judge should attend to hold the courts in such
circuit, during such disability : and in case of death, or resignation,
to hold the courts until a successor shall be appointed, any thing in
any law to the contrary notwithstanding.
Sec. 2. Be it further enacted, That in those counties wherein
no clerk of the circuit court has been appointed the clerks of the
county courts in such counties, are hereby authorised and em-
powered to do and perform all the duties required of the sev-
eral clerks of the circuit courts by the act to which this is a supple-
ment; and the said clerks of the county courts shall continue to per-
form such duties until a clerk for the circuit court shall be appointed
according to the provisions of the act to which this is a supplement ;
and such clerk shall receive the same fees as clerks of the circuit courts
are entitled to for similar services.
Sec. 3. Be it further enacted, That the clerks of the said circuit
courts, shall be authorised to use their private seal in all cases where
264 ILLINOIS HISTORICAL COLLECTIONS
they are required to use their judicial seal, until such judicial seals
can be procured.
Sec. 4. Be it further enacted, That the clerks of the circuit courts
respectively, when appointed, shall hold their offices during good
behaviour, and be subject to be removed only by impeachment, in the
usual way of trying impeachments. This act to be in force from and
after the passage thereof. rt ~
Seth Gard,
Speaker of the House of Representatives, pro tempore.
Pierre Menard,
President of the Legislative Council.
Approved — January 10, 1817.
Ninian Edwards.
An Act regulating the time of holding the County Courts.
Be it enacted by the Legislative Council and House of Represen-
tatives of the Illinois territory, and it is hereby enacted by the
authority of the same. That the county courts for the counties of
Bond, Randolph and Gallatin, shall be holden on the first Mondays
of February, June and October : In the counties of Madison, Jack-
son and White, on the second Mondays of February, June and Oc-
tober : In the counties of St. Clair, Johnson and Edwards, on the
third Mondays in February, June and October : In the counties of
Monroe, Pope and Crawford, on the fourth Mondays in February,
June and October, in each and every year.
Sec. 2. And be it further enacted, That all process heretofore
made returnable to the county courts, shall be continued and made
returnable to the county courts, in the same manner as though no al-
teration had taken place in the terms : Provided, that this act shall
not be so construed as to effect the powers already vested in the circuit
courts now established in this territory.
Sec. 3. Be it further enacted, That so much of the act past last
.session relative to county courts, as prescribes the times of holding
courts, be, and the same is hereby repealed. This act to take effect
from and after its passage.
Seth Gard,
Speaker of the House of Representatives, pro tempore.
Pierre Menard,
President of the Legislative Council.
Approved — January 11, 1817.
Ninian Edwards.
laws of 1816—1817 265
An Act to authorize the Governor to organize the Militia of Edwards
and, Crawford counties.
Be it enacted by the Legislative Council and House of Represen-
tatives of the Illinois territory, and it is heretry enacted by the author-
ity of the same, that it shall and may be lawful for the governor of
this territory, immediately to constitute the militia of Crawford
county into one battalion, and that the counties of Edwards and
Crawford, shall form a regiment; the commanding officer of which,
shall have the same powers and perform the same duties that other
lieutenant colonels of their respective regiments perform. This act
to take effect and be in force from and after its passage.
Seth Gard,
Speaker of the House of Representatives, pro tempore.
Pierre Menard,
President of the Legislative Council.
Approved — January 11, 1817..
Ninian Edwards.
An Act to amend an act entitled, "an act to amend an act entitled
an act for levying and collecting a tax on land," passed the 24th
December, 1814.
Be it enacted by the Legislative Council and House of Represen-
tatives of the Illinois territory, and it is hereby enacted by the author-
ity of the same, that so much of the first section of the said recited act,
as makes it the duty of the territorial auditor, to apply for or procure
from the several Registers of the land offices in this territory, abstracts
of all lands by them sold to individuals, the same is hereby repealed.
This act to take effect from and after its passage.
Geo. Fisher,
Speaker of the House of Representatives.
Pierre Menard,
President of the Legislative Council.
Approved — January 11, 1817.
Ninian Edwards.
An Act to provide for the collection of the county levy and terri-
torial tax, in the county of Gallatin, for the year 1816.
Be it enacted by the Legislative Council and House of Represen-
tatives of Illinois territory, and it is hereby enacted by the authority
266 ILLINOIS HISTORICAL COLLECTIONS
of the same, that the lists of taxable property and land tax, made by
the county treasurer of the county of Gallatin, for the year 1816, be,
and the same is hereby declared to be legal, and he shall be entitled to
the same compensation therefor, as if the same had been done within
the time prescribed by law.
Sec. 2. Be it further enacted, That the sheriff of said county is
hereby authorised and empowered to collect the taxes of said county
for the year one thousand eight hundred and sixteen, in the same
manner as if the lists had been delivered to him agreeably to law ; and
it shall be his duty to settle for the same on or before the first day
of July next. This act to be in force from and after its passage.
Geo. Fisher,
Speaker of the House of Representatives.
Pierre Menard,
President of the Legislative Council.
Approved — January 11, 1817.
Ninian Edwards.
An Act for the appointment of Circuit Attornies.
Be it enacted by the Legislative Council and House of Represen-
tatives of the Illinois territory, and it is hereby enacted by the author-
ity of the same, that there shall be appointed to each judicial circuit
of this territory, a prosecuting attorney, who shall be styled and
called "Circuit Attorney;" and it shall be the duty of said at-
tornies to prosecute in all cases according to law.
Sec. 2. Be it further enacted, That it shall be the duty of the
said circuit attornies in their respective circuits to keep a journal or
memorandum of all cases arising within their respective circuits; in
the prosecution of which, there shall appear to be any defect in the
criminal laws of the territory, and make a report of all such appar-
rent defects to the legislature annually, for the purpose of enabling
them to make such amendments as will tend to perfect our criminal
code.
Sec. 8. Be it further enacted, That it shall be the duty of the
said circuit attornies, to do and perform all the duties now enjoined
on the prosecuting attornies of this territory, and as a compensation
for their services, they shall receive eighty dollars, quarter yearly out
of the public treasury, and they shall also receive the sum of ten dol-
lars in all prosecutions for felony, when the party prosecuted shall
laws of 1816—1817 267
be convicted, for each and every person prosecuted, and for every
indictment or presentment, where the offence shall not amount to
felony, where the party prosecuted shall be convicted, for every person
so prosecuted, the sum of five dollars.
Sec. 4. Be it further enacted, That when the said circuit attor-
nies, respectively shall be unable to attend to discharge their official
duties, they shall have the right, and are hereby empowered to appoint,
under their hands and seals, a deputy to act in his stead, who shall be
entitled to the same fees, and the rights and privileges in court, that
the said circuit attornies themselves would have.
Sec. 5. Be it further enacted, That it shall be the duty of the
said circuit attornies, to take the usual oaths of office prescribed by law
to be taken by all officers in this territory.
This act to take effect from and after the passage.
Seth Gard,
Speaker of the House of Representatives pro tempore.
Pierre Menard ,-
President of the Legislative Council.
Approved — January 11, 1817.
Ninian Edwards.
An Act altering the mode of taking in lists of takable property.
Be it enacted by the Legislative Council and House of Represen-
tatives of the Illinois territory, and it is hereby enacted by the author-
ity of the same, that the lists of taxable property in this territory
shall hereafter be taken in and ascertained in the form and manner
following, viz :
That the county courts of every county, shall at their first court
after the first day of January yearly and every year appoint some fit
person in each township within the county, to receive and take in all
lists of taxable property, subject to county and territorial tax within
the same ; and each person so appointed by virtue of this act, for the
purpose of taking in lists of taxable property, shall before he begins
to exercise the duties of his office, take and subscribe to the following
oath or affirmation, before some justice of the peace: "I, A. B. do
solemnly swear or affirm, as the case may be, that I will to the best
of my knowledge, diligently and faithfully execute the duties of a
commissioner to which I am appointed agreeably to law, without favor
or affection or partiality, so help me God." A certificate of which
268 ILLINOIS HISTORICAL COLLECTIONS
oath so taken and subscribed, shall be transmitted by the justice ad-
ministering the same to the clerk of the county court, whose duty it
shall be to file and preserve the same ; and the person so appointed in
each township, shall advertise in the respective townships of their
counties, that he will attend on a certain day, not less than ten days
thereafter, at some place that he may suppose most convenient to the
inhabitants within the same for the purpose of receiving and taking
in their several lists of property subject to taxation. And each and
every person possessing or having the care of property subject to
taxation within the township, are hereby reguired to attend at such
place or places as said commissioner may appoint in manner aforesaid.
Sec. 2. Be it further enacted, That it shall be the duty of the
commissioner so appointed by the court aforesaid, to attend at the
time and place by him advertised as aforesaid, and take in and re-
ceive lists of taxable property, from each and every person who shall
attend to give in the same. And the said commissioner is hereby
authorized and required to administer to each person giving in his or
her list of taxable property, the following oath or affirmation, to wit :
"I, A B, do solemnly swear or affirm as the case may be, that this
list contains a true and perfect account of all persons, and every
species of property belonging to or in my possession, or care, subject
to taxation, and that no contract, change or removal whatever of prop-
erty has been made or entered into, or any other mode advised or used
to evade the payment of taxes. ' '
Sec. 3. Be it further enacted, That every person subject to taxa-
tion who shall fail or refuse to attend at the time and place so adver-
tised as aforesaid, for the purpose of giving in his or her list of tax-
able property, shall have ten days given him or her thereafter to
attend at the house of the said commissioner to give in the same, which
shall be received by him in the same manner and form as if he or she
had attended at the time and place appointed as aforesaid, or to trans-
mit his or her list of taxable property to the said commissioner ac-
companied with like affidavit as is required by this act.
Sec. 4. Be it further enacted, That if any person shall give,
transmit or deliver to the person authorized as aforesaid to receive
lists of taxable property, a fraudulent list of property subject to taxa-
tion, or shall fail or refuse to attend and give in his list on oath or
affirmation, or to transmit the same, or giving or transmitting a
fraudulent list shall be liable to pay a fine of five dollars, and the
laws of 1816—1817 269
person so appointed by the court to receive such list, shall proceed to
list his or her property agreeably to the best information he can pro-
cure, and all such property so enlisted shall be subject to treble tax,
to be collected and distrained for by the sheriff as in other cases;
which fine and treble tax, shall be recovered in the county court by
by the following mode of procedure, and shall be applied as herein-
after directed.
Sec. 5. Be it further enacted, That the person so appointed by
the court as aforesaid, shall give information to the county court in
person, if he is able to attend, if not, in writing, any time before the
first day of August yearly and every year, of all such persons as shall
have so failed, or given in a false or fraudulent list of their taxable
property, and the said court shall forthwith direct their clerk to issue
a summons requiring the party to attend at the next term of their
said county court, to shew cause, if any, why he or she shall not be
fined and treble taxed for failing to deliver his or her list, or giving
in a false or fraudulent list as the case may be. And any person or
persons being served therewith by the sheriffs, may appear and defend
the same, and the court shall proceed to enquire into and decide the
same in a summary way according to the justice of the case. And if
the defendant be found guilty by the court, they shall give judgment
and award execution thereon for the fine and treble tax together with
costs; but for good cause shewn, the court may continue the same
until the next term. And on judgment being given against any delin-
quent as aforesaid, the court shall certify the amount to the auditor
and sheriff, who shall collect and account for the same as other taxes
are.
Sec. 6. Be it further enacted, That each person so appointed to
receive lists of taxable property as aforesaid, after having collected
the same in his district in manner as before described, shall deliver
the same to the clerk of the county court for the said county in which
the person giving in such list of taxable property resides on or before
the first day of June. And the said clerk shall proceed to make out
therefrom lists in alphabetical order of all persons and property
subject to taxation in the present usual form, and shall examine said
lists, and certify them to be correct to the- different officers entitled to
them by law, and the clerk shall be entitled to the same compensation,
as is already provided for such services.
Sec. 7. Be it further enacted, That the person so appointed to
take in lists of taxable property as aforesaid, shall be exempt from
270 ILLINOIS HISTORICAL COLLECTIONS
doing- militia duty, working on the highways or serving as jurors, for
one year from and after the time of his appointment as aforesaid.
Sec. 8. Be it further enacted, That the persons so appointed by
the county court for the purpose of taking in lists of taxable property,
or the clerk of any such county court failing to perform any one of
the duties imposed upon them by this act shall be subject to a fine of
not exceeding one hundred dollars to be recovered in the same way
that is directed by law.
Sec. 9. Be it further enacted, That all laws or parts of laws,
which come within the perview of this act, and so much of all laws or
parts of laws, as creates a county treasurer, in the several counties in
this territory and so much of any law which allows the prosecuting
attorney the sum of ten dollars for aiding and assisting the several
county courts to settle with the treasurer heretofore appointed, be,
and the same are hereby repealed.
Sec. 10. Be it further enacted, That the sheriffs of the respective
counties, are hereby required to collect and pay over all monies to the
orders of the countj^ courts, in the same manner that the county treas-
urers were required to do, and shall in all respects perform the same
duties that the respective county treasurers were required to perform
so far as is not inconsistent with the preceding provisions of this act.
And the said county treasurers are hereby required to give up all the
books and papers as well as monies appertaining to their offices respec-
tively to the sheriffs of their respective counties in a reasonable time
after the passage of this act. And the said sheriffs shall receive as a
full compensation for their services, as collectors and county treas-
urers, out of the county funds of their counties respectively, ten per
cent, on all monies so collected and paid out. This act to be in force
from and after the passage thereof.
Geo. Fisher.
Speaker of the House of Representatives.
Pierre Menard,
President of the Legislative Council.
Approved — January 11, 1817.
Ninian Edwards.
An Act supplemental to act concerning Justices of the Peace.
Be it enacted by the Legislative Council and House of Represen-
tatives of the Illinois territory, and it is hereby enacted by the author-
laws of 1816—1817 271
ity of the same, That the several justices of the peace within this terri-
tory, shall have cognizance in all cases wherein the demand or debt
shall not exceed the sum of forty dollars, in which cases they may give
judgment and award execution, and in all respects be governed by
the laws now in force in this territory regulating the jurisdiction of
justices of the peace, except so much of the tenth section of the law
passed the twenty-fourth day of December, one thousand eight hun-
dred and fourteen, which gives the said justices jurisdiction of twenty
dollars only ; which section or so much of it as comes within the per-
view of this act, be and the same is hereby repealed.
Sec. 2. Be it further enacted, That in all cases where the debt or
demand shall exceed twenty dollars, it shall be the duty of said justice
of the peace to hold his court monthly, and either plaintiff or defend-
ant shall be entitled to a trial by jury, by giving notice either person-
ally or in writing to the said justice of the peace five days previous to
the day of the trial; and it shall be the duty of the said justice on
receiving such notice, to issue his venire directing the constable to
summon twelve good and lawful men to attend to try the suit or suits
before him depending, noting the day on which the same is to be
tried; and the party at whose recpiest the jury may have been sum-
moned, shall pay to each juror who shall attend to try the cause, the
sum of fifty cents; but should the plaintiff and defendant both request
a jury and give notice as is required by this act, then and in that case,
the jury fees shall abide the event of , the suit, and be taxed in a bill
with other costs ; and the justice of the peace shall be entitled to fifty
cents for summoning and swearing the jury ; and the constable shall
be entitled to twelve and an half cents for serving on each juror, and
milage to the most distant place of service on one precept.
Sec. 3. Be it further enacted, That appeals taken from the
judgment of a justice of the peace in this territory, shall be tried in
the county courts, and shall in all cases be proceeded on as is now
directed by law. This act to be in force from and after its passage.
Geo. Fisher,
Speaker of the House of Representatives.
Pierre Menard.
President of the Legislative Council.
Approved — January 11, 1817.
Ninian Edwards.
272 ILLINOIS HISTORICAL COLLECTION'S
An Act concerning the courts of Jackson county.
Be it enacted by the Legislative Council and House of Represen-
tatives of the Illinois territory, and it is hereby enacted by the
authority of the same, that the respective courts for the county of
Jackson, shall hereafter be holden at the town of Brownville, and not
at the house of Nathan Davis, as was heretofore required by law.
This act to be in force from and ufter its passage.
Geo. Fisher,
Speaker of the House of Representatives.
Pierre Menard,
President of the Legislative Council.
Approved — January 11, 1817.
Ninian Edwards.
An Act to authorize the collection of monies due from the citizens
of Bond and Crawford counties to the counties of Madison and
Edwards, and for other purposes.
Be it enacted by the Legislative Council and House of Represen-
tatives of the Illinois territory, and it is hereby enacted hj the author-
ity of the same, that all monies or arrearages of taxes due, which
it would have been the duty of the sheriffs of Madison and Edwards
counties to have collected in the new counties of Bond and Crawford,
had those counties not have been established, shall be collected in the
same manner by the said sheriffs of Madison and Edwards, as though
said counties had not been stricken off ; and it shall be the duty of the
clerks to issue executions on all judgments now rendered, or which
may hereafter be rendered in the said counties of Madison and Ed-
wards, against the citizens of the said counties of Bond and Crawford.
Sec. 2. And be it further enacted, That it shall be the duty of
the clerks of the circuit and county courts in said counties to issue
process in suits that have been instituted in the said courts, to com-
pel the attendance of witnesses at the trial of said causes, in the same
manner that they would have done, if those counties had not been
erected; and it shall be the duty of the sheriffs of the said counties
of Madison and Edwards, to execute the same.
Sec. 3. And be it further enacted, That it shall be the duty of the
clerks of the circuit courts in those counties in which the circuit
courts have been heretofore extended, and to which any portion of any
laws of 1816—1817 273
county in which the said circuit courts were not established was at-
tached to issue process in all cases in those counties or parts of coun-
ties, to procure the attendance of witnesses to attend the trial of any
causes now depending in said circuit courts, and to issue all process
necessary to the final and ultimate determination of all suits that
remain in any wise undetermined in the said counties ; and it shall be
the duty of the sheriffs of those counties from which such process
issued, to execute and return the same as heretofore.
This act to take effect from and after its passage.
Geo. Fisher,
Speaker of the House of Representatives.
Pierre Menard,
President of the Legislative Council.
Approved — January 11, 1817.
Ninian Edwards.
An Act making appropriations for the year 1817, and for
other purposes.
Be it enacted by the Legislative Council and House of Represen-
tatives of the Illinois territory, and it is hereby enacted by the author-
ity of the same, that the same contingent fund shall be allowed, and
subject to be appropriated in the same manner that was allowed for
the year 1816.
Sec. 2. Be it further enacted, That there shall be paid out of the
territorial treasury, on the warrant of the auditor of public accouuts,
to each member of the legislative council and house of representatives,
the sum of three dollars per day for each day's attendance at the
present session of the legislature, and at the. rate of three dollars for
every twenty miles travel to and from the seat of government to their
places of residence by the most usual road.
To the secretary of the legislative council and clerk of the house
of representatives for their services at the present session, the sum of
four dollars per day for every day 's attendance at the present session :
And to the engrossing and enrolling clerk, the sum of four dollars per
day : And to the door keeper of both houses, three dollars per day for
each day's attendance at the present session.
Sec. 3. Be it further enacted, That the compensation which may
be due to the members and officers of the legislative council, shall be
certified by the secretary thereof ; and the secretary 's by the presi-
274 ILLINOIS HISTORICAL COLLECTIONS
dent thereof. And that which may be due to the members of the
house of representatives, including the enrolling clerk and door-keeper,
by the clerk thereof; and the clerk's by the speaker thereof; which
certificate shall be sufficient evidence to the auditor of the claim, and
he shall thereupon issue a warrant or warrants to the person .so en-
titled on the territorial treasury for the amount of bis certificate,
which warrants as well as all other warrants, shall draw interest until
paid at the treasury.
Sec. 4. Be it further enacted, That the following shall continue
for one year, commencing on the first day of January, eighteen hun-
dred and seventeen, to be the salaries of certain officers, as follows
to wit : To the auditor of public accounts, the sum of three hundred
dollars; to the territorial treasurer, the sum of two hundred dollars.
Sec. 5. There shall be paid out of the general fund to the fol-
lowing persons, the following sums to wit : To AVilliam Morrison,
for house rent furnished the present session, the sum of one dollar
and fifty cents per day : To Hugh H. Maxwell, the sum of fifteen dol-
lars twenty five cents for stationary &c. for the use of the legislature:
to Michael Beavienue for wood furnished the legislature, twenty-one
dollars twenty-five cents; to William C. Greenup, for a seal furnished
the court of appeals, twenty-five dollars, which if paid by the United
States, shall be refunded to the territory ; to William Bennet for house
rent and fire wood, for two days during the present session, the sum
of two dollars per day : to Isaac Basey for his services as door-keeper,
for the two first days of the present session, the sum of three dollars
per clay : to Samuel Omelvany for taking a list of persons subject to
a poll tax in the county of Gallatin for the year 1813, $34 : to Daniel
P. Cook, auditor of public accounts for postage on public papers trans-
mitted to his office, the sum of seven dollars and fifty cents: to William
Morrison for stationary, six dollars; to Hugh H. Maxwell, for acting
as auditor for twelve days during the last session, forty dollars.
This act to take effect from and after its passage.
Geo. Fisher,
Speaker of the House of Representatives,
Pierre Menard,
President of the Legishitive Council.
Approved — January 13, 1817.
Ninian Edwards.
laws or 1816—1817 275
An Act defining the duties of clerks in granting letters of
administration and for other purposes.
WHEREAS it has been represented to this legislature, that sun-
dry persons under the present existing laws of the territory have
taken out letters of administration on the estate of other persons,
who were actually living ; and whereas much inconvenience may
arise to the good people of this territory in consequence of such a
mode of proceeding: for remedy whereof,
Be it enacted by the Legislative Council and House of Repre-
sentatives of Illinois territory, and it is hereby enacted by the author-
ity of the same, that it shall be the duty of the several clerks of the
county courts in this territory, who are or shall hereafter be author-
ised to grant letters testamentary or letters of administration, to re-
quire the persons applying for such letters testamentary or letters of
administration, to make proof that the person on whose estate he, she
or they are about to administer, is actually dead, which proof may
be made either by the oath or affimation of some creditable witness
or witnesses, or by the oath or affirmation of such applicant.
Sec. 2. And be it further enacted, That if any clerk shall grant
letters testamentary or letters of administration without first taking
such proof of the death of any decedent, the said clerk so offending,
shall forfeit and pay the sum of five hundred dollars, one half for the
use of the territory, and the other to the person sueing for the same,
and be liable to a suit for damages to double the amount of the estate
so administered on, to be recovered in any court having competent
jurisdiction thereof.
Sec. 3. Be it further enacted, That if any person or persons,
shall fraudulently obtain any letters testamentary or letters of admin-
istration, by making a false statement er by causing any person to
make such false statement for them, every such person shall be
deemed guilty of perjury, and be punished accordingly ; and all such
letters testamentary and letters of administration, that shall be so
fraudulently obtained, shall be considered null and void. .
This act to commence and be in force from and after its passage.
Geo. Fisher,
Speaker of the House of Representatives.
Pierre Menard,
President of the Legislative Council.
Approved — January 14, 1817.
Ninian Edwards.
576 ILLINOIS HISTORICAL COLLECTIONS
An Act to explain the law regulating sheriffs fees in certain cases.
WHEREAS doubts have arisen as to the construction of the laws
allowing commission to sheriffs and fees for levying executions : for
remedy whereof,
Be it enacted by the Legislative Council and House of Repre-
sentatives of the Illinois territory, and it is hereby enacted by the au-
thority of the same, that for levying every execution the sheriff levy-
ing the same shall be allowed fifty cents, for proceeding to sell, if the
property be actually sold, the commission to the sheriff shall be five
per centum on the first three hundred dollars, and two per centum
on all sums above that, and one half of such commission when the
money is paid to the sheriff without seizure, or where the lands and
goods seized or taken shall not be sold. This act to be in force from
and after its passage.
Geo. Fisher,
Speaker of the House of Representatives.
Pierre Menard,
President of the Legislative Council.
Approved — January 14, 1817.
Ninian Edwards.
laws of 1816—1817 277
RESOLUTIONS.
Resolution respecting the distribution of the Laws and Journals
of this session.
Resolved, By the Legislative Council and House of Representa-
tives of the Illinois territory, That it shall be the duty of the Secretary
of the territory, to ascertain the number of officers entitled to the laws
of the territory in each county, and forward the same number of the
laws of this territory, passed at the present session, to each clerk of
the county courts respectively, with instructions to such clerks to dis-
tribute them amongst said officers. And it shall be his duty also to
send to each county such a number of the journals as they may be
respectively entitled to in proportion to the number of voters in each
county as appears by the last election returns filed in his office, which
shall be forwarded so soon as they are deposited in his office. And it
shall be the duty of the clerks respectively to distribute the same
amongst the inhabitants of each township of their respective counties.
Geo. Fisher,
Speaker of the house of Representatives.
Pierre Menard,
President of the Legislative Council.
Approved — January 14, 1817.
Ninian Edwards.
278 ILLINOIS HISTORICAL COLLECTIONS
Resolved, By the Legislative Council and House of Representa-
tives of the Illinois territory, that Elias K. Kane, esq. be and he is
hereby appointed to superintend the printing of the laws of this ses-
sion of the Legislature and to furnish a copy thereof for the printer ;
and it shall be his further duty to place an index to the same. And
it shall be the duty of Messrs. Cook & Blackwell, to procure a certi-
ficate from the secretary of the territory of their having printed and
delivered in his office the number of copies, both of the journals and
laws which they have contracted to print, and it shall be the duty of
the secretary to estimate what they shall be entitled to, and certify
the same to the auditor, who shall issue his warrant for that amount,
on the territorial treasury.
Geo. Fisher,
Speaker of the House of Representatives.
Pierre Menard,
President of the Legislative Council.
Approved — January 14, 1817.
Ninian Edwards.
LAWS
PASSED
BY THE GENERAL ASSEMBLY
OF
ILLINOIS TERRITORY,
AT THEIR SIXTH SESSION,
HELD AT KASKASKIA— 1817— '18.
KASKASKIA, I. T.
Berry and Blackwell — Printers to the Territory.
1818.
[Reprinted from the first edition.]
CONTENTS.
Page
An Act to Repeal Part of an Act Entitled, an Act Supplementary to an
Act Entitled an Act Establishing Ferries 283
Regulating and Defining the Duty of Justices of the Peace in Certain
Cases 283
To Incorporate the Little Wabash Navigation Company 284
Forming a Separate County Out of Gallatin, White and the Detached
Part of Jackson County 290
To Amend an Act Entitled, an Act Regulating Grist-Mills and Millers 292
Adding a Part of Pope County to Johnson, and Forming a New County
Out of Johnson County 292
For the Permanent Establishment of the Seat of Justice for Crawford
County 294
To Repeal an Act Entitled, an Act to Amend an Act Entitled, an Act to
Amend an Act Entitled, an Act for Levying and Collecting a Tax on
Land, Passed the 24th Day of December, 1814 297
To Incorporate Medical Societies for the Purpose of Regulating the
Practice of Physic and Surgery in This Territory 297
To Authorise Samuel Rogers to Erect a Mill-Dam Upon and Across the
Kaskaskia River 301
To Establish a Fishery on the Kaskaskia River 301 _
Concerning the Manner of Working Salt-Petre Caves 302'
To Authorise the Establishment of an Additional Ferry at Shawnoe-
town 303
To Provide Seals for the Several Counties in This Territory 303
Defining the Duty of Sheriffs in Certain Cases, and for Other Pur-
poses 303
Directing the Mode of Perpetuating Testimony in This Territory 305
Supplementary to an Act Entitled, an Act Subjecting Real Estate to
Sale for Debt, Passed the Seventeenth Day of September, Eighteen
Hundred and Seven 307
To Divorce Elizabeth A. Sprigg From the Banns of Matrimony 309
To Authorise William Morrison of Kaskaskia, to Build a Floating
Bridge Over the Kaskaskia River, in the County of Washington 310
To Establish the Line Between the Counties of St. Clair and Madison 311
Declaring Big Muddy River a Navigable Stream 312
Forming a New County Out of the County of St. Clair 312
Supplemental to an Act Entitled, an Act Supplementary to the Several
Laws for Levying and Collecting a Tax on Land 314
Providing for Taking the Census of the Inhabitants of the Illinois
Territory, and for Other Purposes 315
Supplemental to an Act Entitled, an Act for Taking the Census of the
Inhabitants of This Territory 317
To Organize the Militia of Crawford County, and for Other Purposes 318
To Incorporate the Town of Kaskaskia 318
For the Relief of Thomas C. Brown, a Member of the Legislative Coun-
cil 322
Providing for the Collection of the Tax of One Thousand Eight Hun-
dred and Seventeen, and for Other Purposes 322
Supplemental to an Act Entitled, an Act for the Removal and Safe
Keeping of the Ancient Records and Papers of This Territory,
Passed the 25th Day of Dec. 1812 323
To Amend an Act Entitled, an Act Establishing Courts for the Trial of
Small Causes, Passed the Seventeenth Day of September, Eighteen
Hundred and Seven 324
Supplemental to the Acts Establishing Circuit Courts, and for the Ap-
pointment of Circuit Attornies 324
To Authorise Joseph Smith to Build Toll Bridges Across the Big and
Little Beaucoup Creeks 326
To Regulate the Representation in Certain Counties in the General
Assembly 326
To Incorporate the Stock-Holders of the Illinois Navigation Company 327
To Incorporate the Bank of Edwardsville 334
To Incorporate the City and Bank of Cairo 340
To Incorporate the President, Directors and Company of the Bank of
Kaskaskia 348
Establishing Circuit Courts and Justices' Courts, and for Other Pur-
poses 355
Making Appropriations for the Year Eighteen Hundred and Eighteen,
and for Other Purposes 361
Resolutions 363
LAWS.
An Act to repeal part of an act entitled an act supplementary to an
act entitled, an act establishing Ferries.
Be it enacted by the Legislative Council and House of Represen-
tatives of the Illinois territory, and it is hereby enacted by the author-
ity of the same, That the last section of the above recited act, which
compels owners or occupiers of ferries to pass Preachers of the Gospel
free of ferriage, shall be, and the same is hereby repealed.
Sec. 2. And be it further enacted, That this act shall take effect
from and after its passage.
George Fisher,
Speaker of the House of Representatives.
Pierre Menard,
President of the Legislative Council.
Approved — December 17, 1817.
Ninian Edwards.
An Act 1'egulating and defining the duty of Justices of the Peace
in certain cases.
Be it enacted by the Legislative Council and House of Repre-
sentatives of the Illinois territory, and it is hereby enacted by the
authority of the same, That it shall be the duty of each Justice of the
Peace in the territory, to pay over all monies which he may have col-
lected, immediately when called on, at his own house, by the person
or persons to whom such money is due, on pain of forfeiting twenty
dollars, to be sued for and recovered before any justice of the peace
for the county, for the use of the person or persons injured.
This act to take effect and be in force from and after the first day
of March next.
George Fisher,
Speaker of the House of Representatives.
Pierre Menard,
President of the Legislative Council.
Approved — December 17, 1817,
Ninian Edwards.
283
284 ILLINOIS HISTORICAL COLLECTIONS
An Act to incorporate the Little Wabash Navigation Company.
WHEREAS, it is represented to this General Assembly that the
opening of the navigation of the Little Wabash river will be of great
public utility, and that there are many persons willing to subscribe
considerable sums of money to effect so laudible and beneficial a work,
and it being just and proper, that they, their heirs and assigns should
be empowered to receive by way of toll, satisfaction for the money
advanced by them in carrying the work into execution.
Be it therefore enacted by the Legislative Council and House of
Representatives of the Illinois territory, and it is hereby enacted by
the authority of the same, That James Ratliff, James Gray, James S.
Graham, Daniel Hay, William M 'Henry, Leonard White, Seth Gard,
Joseph Pomeroy and C. Slocumb, are hereby authorized to open books
and receive subscriptions in such places, as they may deem proper ;
which subscriptions shall be made personally, or by power of attor-
ney. The said books shall be opened on the first day of March next,
for receiving subscribers, and may continue open until two thousand
shares are subscribed for; but the aforesaid persons, or a majority
of them, may at any time after four hundred shares are subscribed
for, call a general meeting of the share-holders, by publicly advertis-
ing the same, at such time and place as they or a majority of them
shall fix on.
Sec. 2. And be it further enacted, That the said subscribers
and their heirs and assigns from the time of the said first meeting,
shall be and are hereby declared to be incorporated into a company by
the name and style of the "Wabash Navigation Company," and
may sue and be sued as such : Such of the subscribers as may be
present at the said meeting, or a majority of them, are hereby em-
powered to elect seven directors, who are hereby authorized to elect
from among themselves a President ; which said President and Direc-
tors, shall have the conducting and managing the business of the com-
pany, for twelve months, then next after such election ; and in case of
the death, removal or resignation, or incapacity of the president, or
any of the directors, the remaining ones, may call a general meeting
of the share-holders to fill such vacancy by elections as aforesaid.
Sec. 3. Be it further enacted, That from time to time, upon the
expiration of the said term for which said president and directors
were elected, the proprietors of said company may at their next
general meeting, which shall be held annually, either continue the
laws of 1817—1818 285
same directors, who may continue the same president, or either of
them or elect new ones in their stead.
Sec. 4. After the first meeting as aforesaid, the attendance of
proprietors in person, or by proxy, having one hundred shares at the
least shall be necessary to constitute a general meeting, but if a suffi-
cient number of share-holders to constitute a general meeting should
not attend, those who do meet may adjourn the meeting from day
to day, until a sufficient number can be had.
Sec. 5. Each of the shares aforesaid shall be five dollars, pay-
able in five equal instalments, one fifth at the time of subscribing, and
the balance from time to time, as the president and directors may re-
quire, always giving one months notice in some newspaper, printed
in the territory, that such instalment is due and called for, which
shall be paid in gold or silver, or the notes of the United States' bank,
treasury notes, or the notes of banks w^ho do pay specie, and are cur-
rent in this territory.
Sec. 6. Be it further enacted, that the said president and direc-
tors by and with the advice and consent of a majority of the share-
holders shall have power to increase the number of shares to any
number not exceeding ten thousand, when it shall be expedient to do
so ; and it shall be the duty of the said president and direc-
tors when they shall increase the number of shares as aforesaid, to
give public notice thereof in some public newspaper, printed in this
territory.
Sec. 7. The shares in the said company shall be transferable,
under such regulations as shall be provided, by the bye-laws and
ordinances of the said corporation.
Sec. 8. It shall and may be lawful for the president and directors,
or a majority of them, to agree with the owners of any land through
which any canal is intended to pass, for the purchase thereof ; and in
case of disagreement, or in case the owner thereof shall be a feme
covert, under age, non compos, or out of the state, on application to
any two justices of the peace, in the county in which such land shall
lie, the said justices shall issue their warrant under their hands to
the sheriff of their county, to summons a jury of twenty four inhabi-
tants of his county, of probity and reputation, not related to the par-
ties, nor in anywise interested, to meet on the land to be valued at a day
to be expressed in the warrant, not less than ten nor more than twenty
thereafter ; and the sheriff upon receiving such warrant, shall forth-
286 ILLINOIS HISTORICAL COLLECTIONS
with summons the said jury, and when met, shall administer an oath,
or affirmation, to every juryman that shall appear that he will faith-
fully and impartially value the land, not exceeding in any case one
hundred feet in width, and all damages the owner thereof may sustain,
by catting the canal through his, or her land, according to the best
of his skill and judgment, and that in such valuation, he will not
spare any person for favor or affection, nor any person grieve, for
hatred malice or ill-will, and the inquisition thereupon taken shall be
signed by the sheriff, and some twelve or more of the jury, and re-
turned by the sheriff to the clerk of the count}'', to be by him recorded :
in every such valuation, the jury are hereby directed to describe any
ascertain the bounds of the land by them valued and their valuation
shall be conclusive on all persons, and shall be paid by such presi-
dent and directors to the owner of the land or his legal representa-
tives, and on payment thereof, the said company be seized in
fee of such land, as if conveyed by the owner to them, and their suc-
cessors by legal conveyance : Provided nevertheless, that if any
future damage shall arise to any proprietor of land in consequence of
opening said canal, or erecting such works than had been before con-
sidered and valued, it shall and may be lawful for such proprietor
as often as any such new damage shall happen, to apply to the justice
as before recited, and receive and recover the same as aforesaid, but
nothing herein contained shall be taken or construed to entitle the
proprietor of any such land, to recover compensation for any damage
which may happen to any mills, forges, or other works of improve-
ment, as shall be begun by such proprietor after such first valuation,
unless the same damage is wilfully and maliciously done by the said
president and directors, or some person by their authority.
Sec. 9. And be it further enacted, That the president and direc-
tors, or a majority of them, are hereby authorized to agree with the
proprietor for the purchase of any quantity of land, not exceeding
one fourth of an acre, at or near the place of receiving toll, for the
purpose of erecting buildings, and in case of disagreement, or any of
the causes before mentioned, then such land may be valued, condemned
and paid for as aforesaid, for the purpose aforesaid ; and the said
company shall upon payment of the valuation of said land, be seized
thereof in fee simple, as aforesaid : And whereas, some of the places
through which it may be necessary to conduct some canal, or erect
other works may be convenient, for erecting mills, or other water
laws of 1817—1818 287
works, and the persons possessed of the same, may design to improve
them, and it is the intention of this act, not to interfere with private
property, but for the purpose of improving the navigation :
Be it therefore enacted, That the water, or any part thereof, con-
veyed through any canal, cut or made by the said company, shall not
be used for any purpose, but navigation.
Sec. 10. And be it further enacted, That in consideration of
the expenses that said proprietors shall be at in opening the said river,
and improving and extending the navigation thereof, and in keeping
the works in repair, and the said works and canals with all their
profits, shall be and the same are hereby vested in the said proprietors,
their heirs and assigns for the term of thirty years, as tenants in com-
mon, in proportion to their respective shares, and the same shall be
real estate, and be forever exempt from paying any tax, imposition, or
assessment whatever, and that it shall and may be lawful for the said
president and directors at all times hereafter, subject to the future
regulations of the Legislature as to the rate of toll, to have, receive,
and demand, at such place on the said canal, as they shall hereafter
judge most convenient, for all boats or vessels of any description, the
following rates, to-wit :
For each boat not more than 30 feet long and 14 feet wide, $ 2 50
For each boat not more than 45 feet long and 14 feet wide, 3 50
For each boat not more than 60 feet long and 14 feet wide, 5 00
For every foot over 60 feet long 01
For every skiff, perouge, or canoe, not more than 2 tons burthen,
nor less than one ton 1 00
For each hundred pipe or hogshead staves, floated or rafted 01
For each hundred feet of plank, floated or rafted 01
For each hundred cubic feet of other timber floated 10
Provided, however, That no boat, perogue, or canoe loaded with
coal, lime, iron or other ore, or household furniture, shall pay more
than one half of the aforesaid prices, and that the said rates, under
the limitations aforesaid, shall be collected at such places, and in
such manner as the president and directors, or a majority of them,
may from time to time determine ; and that the said toll be rated and
paid in the same kind of money, which subscribers are heretofore
compelled to pay in.
Sec. 11. That in case the said company shall not begin the said
work in three years after the passage of this act, that then the said
288 ILLINOIS HISTORICAL COLLECTIONS
company shall not be entitled to any benefits arising therefrom, and
in case they shall not complete said navigation as high up as the base
line, in five years for boats or vessels drawing two feet eight inches
water, then shall all exclusive interest of the said company cease,
as to the navigation and toll, at, to or through any part of the little
Wabash river : and whereas weirs, may be erected on said canals when
cut, and trees may be fallen in and across the same, and other obstruc-
tions therein to the great injury of the said navigation.
Sec. 12. Be it further enacted, That all weirs hereafter to be
made on said canals, or any part thereof, or trees fallen in, across,
or put in so as to stop up the passage of any vessel, raft or timber,
shall be declared nuisances, and the same be removed or destroyed
as such by the president and directors, or any person for them. Any
person putting any such obstruction in the aforesaid canals, or any
part thereof, shall forfeit and pay ten dollars for every such offence,
to be recovered before any justice of the peace, in the name, and on
behalf of the Wabash navigation company, and to their use and
benefit.
Sec. 13. The said canals and the works erected thereupon in
virtue of this act, when completed shall forever thereafter be es-
teemed and taken as a public highwaj^, free for the transportation of
all goods, commodities, or produce whatever, upon payment of the toll
imposed by this act : Provided, however, at the expiration of thirty
years it shall be the property of the state or territory, and shall be
subject to such rules and regulations as the legislature thereof may
make and enter into ; and all the right, title and interest of said com-
pany shall cease and be at an end, and shall be fully vested in the
state or territory as aforesaid.
Sec. 14. At every general meeting the president and directors
shall make report and render a strict and just account of all their
proceedings, and all such other information as they may think neces-
sary; and such a dividend of the profits shall be made, as the presi-
dent and directors may think advisable.
Sec. 15. When any thing is due to any person or persons from
said company, and the same shall remain unpaid for thirty days, it
shall be lawful for any court in the county having jurisdiction of like
sums, to give judgment on motion for the amount of the sum due
against the president and directors of the said company, with inter-
est from the end of the said thirty days, to the time of payment, and
costs: Provided always, that ten days notice in writing that such
laws of 1817—1818 289
motion would be made, shall have been left at the office of said com-
pany, and the like remedy shall be had against the president and
directors, upon every undertaking they shall make, whether by bond,
bill obligatory, or note in writing, given by said president and direc-
tors, on behalf of the said navigation company, shall be assignable by
endorsement thereon, and such of the notes as are payable to bearer,
shall be negotiable and assignable by delivery only.
Sec. 16. And the same summary remedy is hereby given against
all persons who shall or may be bound by bond, bill obligatory, or note
in writing, or assignment of the same to the president and directors
of the "Wabash navigation, company : Provided always, that ten days
notice shall be given as above, if to be found, if not, a copy thereof
shall be left with some person over the age of twenty-one, at his or her
place of abode.
Sec. 17. On all motions, judgment shall be given at the first
court, unless for good cause shown, the court may continue it to the
second term, beyond which it shall on no account be continued ; and
when the defendant requires it, a jury shall be summoned instanter,
to enquire into any question of fact which either party shall state
under the direction of the court, and which is not agreed to, and
upon the finding of such facts, or the agreement to them, the
court shall give judgment according to the right of the case, without
regard to form, and without pleading in writing.
Sec. 18. The said corporation shall not deal in airy goods, wares
or merchandize, or any commodities whatever, except what real estate
may be absolutely necessary to carry on their business ; and such
materials as may be necessary for the promotion and furthering
the navigation of the little Wabash river, and building such houses
as they may find it necessary to have ; and also, the aforesaid kind
of money before mentioned, and bills of exchange.
Sec. 19. The president and directors shall have power to pass
bye laws, rules and regulations for the good government of the affairs
of said company, which shall not be contrary to the laws of the United
States, nor of this territory.
Willis Hargrave,
Speaker pro. tern, of the House of Representatives.
Pierre Menard,
President of the Legislative Council.
Approved — December 24, 1817.
Ninian Edwards.
290 ILLINOIS HISTORICAL COLLECTIONS
An Act forming a separate County out of Gallatin, White and the
detached part of Jackson county.
Be it enacted by the Legislative Council and House of Represen-
tatives of the Illinois territory, and it is hereby enacted by the author-
ity of the same, That all that tract of country within the following-
boundaries, to-wit : Beginning' at the corner of townships ten and
eleven on the line, between ranges four and five ; thence north with
said line thirty-six miles ; thence west twenty four miles to the third
principal meridian ; thence south with the same, to the line dividing-
townships ten and eleven ; thence east to the beginning, shall consti-
tute a separate county, to be called Franklin : And for the purpose
of fixing the permanent seat of justice for said county, the following
persons be appointed commissioners : Samuel Hay, Samuel Omelveny
and Richard Maulding, which said commissioners, or a majority of
them, being duly sworn before some judge or justice of the peace in
this territory, to faithfully take into view the situation of the settle-
ments with an eye to future population, and convenience and advan-
tage of the people, and the eligibility of the place, shall meet on the
third Monday of February next, at the house of Moses Garrett, in said
county, and proceed to examine and determine on the place for the
permanent seat of justice, and designate the same: Provided, the pro-
prietor or proprietors of the land shall give to the county, for the pur-
pose of erecting public buildings a quanthy of land at the said place,
not less than twenty acres, to be laid out in lots and sold for the above
purpose ; but should the said proprietor or proprietors refuse or
neglect to make the donation aforesaid, then and in that case, it shall
be the duty of the commissioners to fix on some other place for the
seat of justice, as convenient and advantageous as may be to the in-
habitants of said county; which place fixed and determined upon, the
said commissioners shall certify under their hands and seals, and
return the same to the next county court in the county aforesaid ;
which said court shall cause an entry thereof to be made on their
books of record ; and until the public buildings may be erected, the
courts shall be holden at the house of Moses Garrett, in the county
aforesaid.
Sec. 2. Be it further enacted by the authority aforesaid, Tiiat
the commissioners aforesaid, shall receive a compensation of two
dollars each for every day that they may necessarily be employed in
laws of 1817—1818 291
fixing the aforesaid seat of justice ; to be paid out of the county levy
by an order of the county court.
Sec. 3. Be it further enacted by the authority aforesaid, That
whereas the counties of Gallatin, Edwards, White, Crawford and
Franklin compose one district, for the purpose of electing a member
of the Legislative Council, the citizens of said county entitled to vote,
may at any election for a member of the legislative council to represent
said district, proceed to vote for such member ; and it shall moreover
be the duty of the sheriff of said county, within ten clays after the
close of said election to attend at the court-house of the county of
Gallatin, with a statement of the votes given in said county, to com-
parethe polls of the respective counties, and join with the sheriffs of
Gallatin, Edwards, Crawford and White counties, in making out and
delivering to the person duly elected a certificate thereof; and for a
failure thereof, he shall forfeit and pay the same penalties, and for
the same purposes, that the sheriffs of Gallatin, Edwards, Crawford
and White are subject.
Sec. 4. Be it further enacted by the authority aforesaid, That
the citizens of the said Franklin county, are hereby declared entitled
in all respects to the same right and privilege in the election of a dele-
gate to congress, that are allowed by law to the other counties in this
territory : And all elections are to be held at the same times and
conducted in the same manner as is provided for other counties.
Sec. 5. And it is further enacted, That the counties of Franklin
and Jackson, shall vote for one representative to the house of repre-
sentatives, at their respective seats of justice, at the time prescribed
for holding such elections ; and the sheriffs of said counties shall meet
at the court-house of Jackson county, within twenty days after any
such election, and make out a certificate, signed by both of said
sheriffs, to the person duly elected ; and if the said sheriffs shall
fail to do the same, they shall forfeit and pay the sum of one hun-
dred dollars, for the use of said counties, recoverable by indictment,
in the county in which such delinquent sheriff may reside.
This act to take effect and be in force from and after the passage
thereof. George Fisher,
Speaker of the House of Representatives.
Pirre Menard,
President of the Legislative Council.
Approved — January 2, 1818.
Ninian Edwards.
292 ILLINOIS HISTORICAL COLLECTIONS
An Act to amend an act entitled, an act regulating Grist Mills
and Millers.
Be it enacted by the Legislative Council and House of Represen-
tatives, and it is hereby enacted by the authority of the same, That
each and every miller, or the owner or owners, or occupiers of every
water grist mill now erected, or which shall hereafter be built or
erected within this territory, shall be entitled to have and receive
out of the grain which may be ground in his, her or their said mills :
the following rate of toll in full compensation therefor, to-wit : For
grinding and bolting wheat or rye into flour, one eighth part thereof ;
for grinding indian corn, oats, barley or buck wheat, one sixth part
thereof ; for grinding malt and chopping rye, one eighth part thereof :
any thing in the said law to which this is an amendment, to the con-
trary notwithstanding.
Sec. 2. And be it further enacted, That the second section of the
above recited act be, and the same is hereby repealed.
This act to take effect and be in force from and after its passage.
William H. Bradsby,
Speaker pro tempore, of the House of Representatives.
Pierre Menard,
President of the Legislative Council.
Approved — December 17, 1817,
Ninian Edwards.
An Act adding a part of Pope county to Johnson, and forming a
new county out of Johnson county.
Be it enacted by the Legislative Council and House of Repre-
sentatives of the Illinois territory, and it is hereby enacted by the
authority of the same, That the boundary lines of Johnson county,
shall hereafter be as follows, to-wit : Beginning on the range line,
between ranges four and five, east of the third principal meridian,
at the corner between townships ten and eleven, south of the base
line ; thence south along the said range line to the Ohio river ; thence
down along the Ohio river, to where the range line between ranges
one and two east intersects the said river ; thence north along the
said range line to the corner of townships ten and eleven south ;
thence east along the township line, between townships ten and
eleven, south to the beginning. And that all that part of Pope
laws of 1817—1818 293
county, which is included within the said boundary, shall hereafter
be attached to and form a part of Johnson county.
Sec. 2. And be it further enacted, That all that tract of country
lying within the following boundary, to-wit: beginning on the
range line between ranges one and two, east at the corner of
townships ten and eleven south ; thence south along the said range
line, eighteen miles, to the corner of townships thirteen and fourteen
south ; thence west along the township line, between townships thir-
teen and fourteen south, to the Mississippi river; then up the Missis-
sippi river to the mouth of Big Muddy river ; thence up Big Muddy
river to where the township line between townships ten and eleven
south, crosses the same ; thence east along the said township line to the
beginning, shall constitute a separate county, to be called "Union"
County. Provided however, that all that tract of country lying south
of township thirteen south, to the Ohio and Mississippi rivers, and
west of the range line between ranges one and two east, shall until
the same be formed into a separate county be attached to and be a
part of Union county.
Sec. 3. And be it further enacted, That the courts directed to
be holden in Johnson county, shall be held at the present court-house
until a permanent seat of justice shall be established, and a court-
house be erected, as hereafter directed : and that the courts directed to
be holden in Union county shall be held at the house of Jacob Hun-
saker jr. until a permanent seat of justice shall be established, and
a court-house erected thereat, as hereinafter directed.
Sec. 4. And be it further enacted, That for the purpose of fixing
the permanent seat of justice in Johnson county, William M'Fatridge,
James Bane and Isaac D. Wilcox, are appointed commissioners to
meet, or a majority of them, at the house of James Bane, for the
purpose of fixing the permanent seat of justice in Union county :
George Wolf, Jesse Echols and Thomas Cox, are appointed commis-
sioners to meet at the house of John Grammer, on the first Monday in
February next, or on such day as they may appoint within thirty
days thereafter, and after taking an oath before some judge or justice
of the peace, in this territory, to faithfully and impartially take into
view the geography of the county, the convenience of the people, and
the eligibility of the place, as near the centre of the county as may be,
they shall respectively proceed to examine and determine on the place
in each county for the permanent seat of justice in the said counties,
294 ILLINOIS HISTORICAL COLLECTIONS
and respectively designate the same: Provided, that the proprietor
or proprietors of the land shall give to the comity, at least twenty
acres of land, for the purpose of being laid out into lots and sold, or
so much thereof as the county court may direct, to be applied to defray
the expenses of public buildings thereon for the use of the county.
But in case the proprietor or proprietors of the land, refuse or neglect
in either county, to make the donation of land as aforesaid, it shall
then be the duty of the commissioners aforesaid for that county, to
fix on some other place for the seat of justice, as convenient and
eligible to the centre of said county as may be, where the proprietor
or proprietors of the land will make the donation of land as aforesaid,
which place when fixed and determined on, the said commissioners,
or a majority of them, in and for each county shall certify under
their hands and seals and return the same with a conveyance from
the proprietor or proprietors of the land, to the judges of the county
court for the use of the county, to the next county court of their
county, who shall cause an entry thereof to be made on their records;
and the county court in each of the said counties, shall allow to each
of the said commissioners two dollars per day for each day's neces-
sary attendance, in fixing the place for the permanent seat of justice.
Sec. 5. And be it further enacted, That the citizens of Union
county are hereby declared to be entitled in all respects to the same
rights and privileges as are allowed in general, with other counties of
this territory, and in the election of a delegate to congress, and mem-
bers of the house of representatives, when said county shall be entitled
to a member or members of the house of representatives by law.
This act to take effect and be in force from and after the passage
thereof.
Willis Hargrave,
Speaker pro. tern, of the House of Representatives.
Pierre Menard,
President of the Legislative Council.
Approved — January 2, 1818.
Ninian Edwards.
An Act for the permanent establishment of the seat of Justice
for Crawford County.
Be it enacted by the Legislative Council and House of Repre-
sentatives of the Illinois territory, and it is hereby enacted by the
laws of 1817—1818 295
authority of the same, That Seth Gard, Peter Keace and John Wag-
goner, of Edwards county, are hereby appointed commissioners for
the purpose of permanently establishing the seat of justice for the said
county of Crawford ; they or a majority of them, shall meet at the
house of Edward N. Cullum, in said county, between the first and sec-
ond Mondays in the month of February next, and being duly sworn be-
fore some judge or justice of the peace of this territory, faithfully to
take into view the situation of the settlements, geography of the county,
and the convenience and eligibility of the place ; and shall then and
there proceed to establish a permanent seat of justice for the said
county of Crawford, and designate the same : Provided, however,
that the proprietor or proprietors owning such land on which the
seat of justice majr be fixed, shall give to the said county of Crawford,
for the purpose of erecting public buildings, a quantity of land on
which the said commissioners may fix upon for the seat of justice, not
less than twenty acres, to be laid out into lots and sold for the use of
the county ; but should the proprietor or proprietors refuse or neglect
to make the donation aforesaid, then and in that case, it shall be the
duty of the said commissioners, to fix upon some other place for
the seat of justice, as convenient as may be to the different settlements
in the said county ; which place when fixed on, and determined by the
said commissioners, they shall certify under their hands and seals and
return the same to the next county court of the said county of Craw-
ford. And the said commissioners shall be allowed for their services
two dollars for every claj^ they may be necessarily employed in fixing
upon the aforesaid seat of justice, to be paid out of the county levy;
and the said county court, so soon as the said commissioners shall make
their return, shall cause an entry of their proceedings to be spread on
the records of the said court.
Sec. 2 Be it further enacted, That the county court, shall at the
term they receive the said commissioners report, proceed to appoint
an agent, whose duty it shall be to lay out the land which may be
designated, and given to the said county into lots, and proceed to sell
the same by the first day of June next ; and that the personso ap-
pointed as agent as aforesaid, shall within ten days after the sale
of said lots, return to the clerk of the said county court, a correct
statement of the sale of said lots, together with all monies he may
have received from the sale of said public ground ; and the said
county court at their next term, on receiving the return as aforesaid,
296 ILLINOIS HISTORICAL COLLECTIONS
shall proceed to erect the necessary public buildings for said county ;
and make such allowances to their agent as they may think just.
Sec. 3. Be it further enacted, That in order to remove all anxiety
and quiet the public mind respecting the future division of Craw-
ford county, it is hereby enacted that a line, beginning on the Wabash
river and running due west, between townships nine and ten, north of
range eleven west, shall be the line between the county of Crawford,
and a county which may be laid off north of the same : Provided,
however, that all that part of Crawford lying north of the line last
mentioned, shall remain attached to and be considered a part of Craw-
ford county, until a new county shall be laid out north of the line
as above stated.
Sec. 4. Be it further enacted, That all that part of Crawford
county, lying north of a west line between nine and ten, shall com-
pose an election district or precinct, in which all elections for members
of the legislature, and delegate to congress, shall be held; and it
shall be the duty of the commissioners to fix on the seat of justice for
Crawford county, as soon after they shall have fixed upon a place
for that purpose as may be, to proceed to fix on the most convenient
place for holding said elections ; and it shall be the duty of the county
court, at the term preceeding the several elections held in that dis-
trict, to appoint three fit persons, who shall be judges of the election,
and some fit person to keep the poll thereof : and it shall be duty
of the poll-keeper, to send a copy thereof to the sheriff of Crawford
county, within three days after the election, who shall attach the
same to his poll for the county of Crawford, and after adding the
votes together, to proceed as in other cases.
Sec. 5. Be it further enacted, That it shall be duty of the said
judges of the election for said district, to take an oath before some
justice of the peace of said county, faithfully and impartially to con-
duct the same.
This act to take effect and be in force from and after the passage
thereof.
Willis Hargrave,
Speaker pro tempore, of the House of Representatives.
Pierre Menard,
President of the Legislative Council.
Approved — December 24, 1817,
Ninian Edwards.
laws of 1817—1818 297
An Act to repeal an act entitled, an act to amend an act entitled, an
act to amend an act entitled, an act for levying and collecting a tax
on land, passed the 24th day of December, 1814.
Be it enacted by the Legislative Council and House of Represen-
tatives of the Illinois territory, and it is hereby enacted by the author-
ity of the same, That the above recited act be, and the same is hereby
repealed.
Sec. 2. And be it further enacted, That it shall be the duty
of the Auditor of public accounts, to contract with the Registers of the
Land Offices at Kaskaskia, Shawnoetown, Edwardsville and Vincennes,
for abstracts of all lands within this territory, entered in their
respective offices by non-residents, which have not heretofore been
obtained from them, and lay their' respective accounts before the
legislature at their next session.
This act to take effect from and after the passage thereof.
George Fisher,
Speaker of the House of Representatives.
Pierre Menard,
President of the Legislative Council.
Approved— December 27, 1817,
Ninian Edwards.
An Act to incorporate Medical Societies for the purpose of regulating
the practice of Physic and Surgery in this territory.
"WHEREAS, well regulated medical societies have been found
to contribute to the diffusion of true science, and particularly the
knowledge of the healing art; therefore,
Be it enacted by the Legislative Council and House of Repre-
sentatives of the Illinois territory, and it is hereby enacted by the
authority of the same, that this Territory be, and is hereby divided
into two medical districts, and shall be calledthe eastern and western
districts : the eastern district shall be composed of that part of the
territory lying eastof the meridian line running due north from the
mouth of the Ohio ; and the western district of that part lying west
of said line.
Sec. 2. Be it further enacted, That it shall and may be lawful
for the following persons: J. D. Woolverton, J. E. Throgmorton,
Thomas Shannon, Henry Oldham, James Wilson, John Reid, Amos
298 ILLINOIS HISTORICAL COLLECTIONS
Chipp, Samuel R. Campbell, Harden M. Wetherford, in the eastern
district ; and Joseph Bowers, Doctor Todd of Edwardsville, Doctor
Hancock of St. Clair, Caldwell Carnes, George Fisher, William L.
Reynolds, Doctor Heath of St. Clair, George Cadwell and Doctor
Paine, of Kaskaskia, to meet together on the first Monday of May, in
the year of our Lord eighteen hundred and eighteen, at the towns
of Carmi and Kaskaskia, in their respective districts ; and being so
convened as aforesaid, or any of them, being not less than five in
number, shall proceed to the choice of a president, vice president,
secretary and treasurer, who shall hold their offices for one year, and
until others shall be chosen in their places ; and whenever the said
societies shall be organized as aforesaid, they are hereby declared to
be bodies politic and corporate, in fact and in name, by the names of
the "Medical Society of the district," where such society shall be
respectively formed; and by that name shall in law be capable of
suing and be sued, pleading and being impleaded, and answering and
being answered unto, defending and being defended, in all courts
and places, and in all matters and causes whatsoever, and shall and may
have a common seal, and may alter and renew the same at pleasure ;
and the said medical societies shall and may agree upon the times
and places of their next meeting, which shall thereafter be the anni-
versary day of holding their respective meetings.
Sec. 3. Be it further enacted, That the Medical Societies estab-
lished as aforesaid, are hereby respectively empowered to examine
all students who shall or may present themselves for that purpose, and
give diplomas, under the hand of the president and seal of such society,
before whom such student shall be examined ; which diploma shall be
sufficient to empower the person so obtaining the same, to practice
physic or surgery, or both, as shall be setforth in the said diploma,
in any part of the territory. And the person receiving such diploma,
shall upon the receipt of the same, pay to the president of said
society, the sum of ten dollars, for the use of said society.
Sec. 4. Be it further enacted, That it may be lawful for the
medical societies established as aforesaid, at their annual meetings,
to appoint not less than three nor more than five censors to con-
tinue in office one year, and until others are chosen; and it shall be
the duty of each one of them, carefully and impartially to examine
all students who shall present themselves for that purpose before
each of them, and report their opinions respectively in writing to the
laws of 1817—1818 299
president of said society ; and upon such report of any one of said
censors, if favorable, the president is hereby authorized to licence such
student to practice physic or surgery, or both, until the next annual
meeting of the medical society ; and for such licence, such student shall
pay one dollar to the president for the use of the society.
Sec. 5. Be it further enacted, That from and after the organiza-
tion of the said medical societies in the respective districts, no person
shall commence the practice of physic or surgery in either of the
aforesaid districts, until he shall have passed an examination and
received a diploma or licence as aforesaid ; and if any person shall
so practice without having obtained a diploma or licence for that
purpose, he shall forever thereafter be disqualified from collecting
any debt or debts incurred by such practice, in any court, or before
any magistrate in the territory.
Sec. 6. Be it further enacted, That it shall and may be lawful
for the medical societies which shall be established by virtue of this
act, to purchase and hold any estate real and personal, for the use
of the societies respectively : Provided, such estate as well real as
personal, which the said societies are hereby respectively authorised
to hold, shall not exceed the sum of twenty thousand dollars.
Sec. 7. Be it further enacted, That it shall be lawful for the
respective societies to be established by this act, to make such bye-
laws, rules and regulations, relative to the affairs, concerns and prop-
erty of said societies relative to the admission and expulsion of
members ; relative to such donations and contributions, as they, or a
majority of the members at their annual meetings shall think
fit and proper: Provided, the bye-laws, rules and regulations be not
contrary to, nor inconsistent with the ordinance, and laws in force in
this territory ; nor the constitution and laws of the United States.
Sec. 8. Be it further enacted, That the treasurer of each society
established as aforesaid, shall receive and be accountable for all
monies that shall come into his hands, by virtue of any of the bye-
laws of such society ; and also for all monies that shall come into the
hands of the president, for the admission of members or licensing
students; which monies the said president is hereby required to
pay over to the said treasurer, who shall account therefor
to the society at their annual meetings; and no monies shall be
drawn from the treasurer unless such sums and for such purposes
as shall be agreed upon by a majority of the society at their annual
300 ILLINOIS HISTOEICAL COLLECTIONS
meetings, and by a warrant for that purpose, signed by the president.
Sec. 9. Be it further enacted, That it shall be the duty of the
secretary of each of the medical societies to be established by virtue of
this act, to provide a book, in which shall be made an entry of all the
resolutions and proceedings, which may be had from time to time ; and
also the name of each and every member of said society, and the time
of his admission ; and also the annual report relative to the state of the
treasury, and all such other things as a majority of the society shall
think proper; to which book any member of the society may at any
time have recourse ; and the same together with all books, papers, and
records, which may be in the hands of the secretary, and be the
property of the society, shall be delivered to his successor in office,
Sec. 10. Be it further enacted, That it shall be lawful for each
of the medical societies to be established by virtue of this act, to
cause to be raised and collected from each member of such society,
a sum not exceeding ten dollars, in any one year, for the purpose of
procuring a medical library and apparatus, and for the encourage-
ment of useful discoveries in chemistry, botany and such other im-
provements as the majority of the society shall think proper.
Sec. 11. Be it further enacted, That nothing in this act con-
tained, shall be construed to prevent any person coming from any
state, territory or country from practising physic or surgery in this
territory; such person being duly authorized to practice by the laws
of such state, territory or country, and having a diploma from any
such medical society.
Sec. 12. Be it further enacted, That it shall be in the power of
the legislature of this territory, and of the legislature of the state, to
be formed out of this territory, to alter, modify and repeal this act,
whenever they shall deem it necessary or expedient.
Sec. 13. Be it further enacted, That this act shall be, and hereby
is declared to be a public act, and to take effect from and after its
passage.
George Fisher,
Speaker of the House of Representatives.
Pierre Menard,
President of the Legislative Council.
Approved — December 31, 1817.
Ninian Edwards.
laws of 1817—1818 301
An Act to authorise Samuel Rogers to erect a Mill-Dam upon and
across the Kaskaskia River.
Be it enacted by the Legislative Council and House of Represen-
tatives of the Illinois territory, and it is hereby enacted by the author-
ity of the same, That Samuel Rogers be, and he is hereby authorised
to build a Mill-Dam across the Kaskaskia river, at the place known
by the name of Henderson's ford, in the county of Randolph.
Sec. 2. And be it further enacted, That the said Rogers shall
commence said Mill-Dam within three years from the passage of this
law.
Sec. 3. And be it further enacted, That the said Rogers shall in
nowise obstruct the navigation of said river, by the erection of said
dam ; and if such obstruction shall be produced by said dam, it shall
and may be lawful for any person whose passage is obstructed, or any
other person, upon application made to the county court of Randolph
county, and ten days previous notice thereof given to said Rogers, or
his assigns, or those claiming under him, to obtain an order of said
court, to demolish said dam : Provided, however, that if the said dam
shall thereafter be erected or repaired, so as not to produce such ob-
struction as aforesaid, it shall and may be lawful for the owner or
occupier thereof to re-establish said dam.
This act to be in force from and after the passage thereof :
Willis Hargrave,
Speaker pro tempore, of the House of Representatives.
Pierre Menard,
President of the Legislative Council.
Approved — December 27, 1817,
Ninian Edwards.
An Act to establish a Fishery on the Kaskaskia river.
WHEREAS, it is represented to this Legislature that the estab-
lishment of a Fishery on the Kaskaskia river, near to the village of
Kaskaskia, would bea public benefit :
Be it therefore enacted by the Legislative Council and House of
Representatives of the Illinois territory, and it is hereby enacted by
the anthority of the same, That Ezra Owen, of the county of Randolph,
be, and he is hereby authorized to erect a Dam on the falls of the said
river, opposite the mouth of nine mile creek, and opposite the land on
302 ILLINOIS HISTORICAL COLLECTIONS
which the said Owen now lives, across the Kaskaskia river, not to
exceed three feet high, for the purpose of catching fish.
Sec. 2. Be it further enacted, That by the erection of said dam,
the said Owen, is in no way to obstruct the passage of fish, or ordinary
navigation ; or in any way damnify the public utility of said river :
Provided, that said fish-dam shall not injure any mill that is now, or
may hereafter be erected, either on the Kaskaskia river, or any of its
tributary waters.
This act to take effect from and after the passage thereof.
Willis Hargrave,
Speaker pro tern, of the House of Representatives.
Pierre Menard,
President of the Legislative Council.
Approved — December 29, 1817,
Ninian Edwards.
An Act concerning the manner of working Salt-Petre Caves.
Be it enacted by the Legislative Council and House of Representa-
tives of the Illinois territory, and it is hereby enacted by the author-
ity of the same, That if any person shail occupy or work any Salt-
petre cave or caves, in this territory, without first securing the same,
with a good and sufficient fence, of the height required in other cases
by law, so that horses and neat cattle cannot get to the same ; every
person or persons so offending shall forfeit and pay to the owner of
any horse or horses, or neat cattle that shall be killed by drinking the
tray lye, a sum double the value of any such horse or horses,
or neat cattle, to be recovered before any court having competent
jurisdiction to try the same, by an action of debt.
This act shall take effect from and after the first day of June next.
Willis Hargrave,
Speaker pro tern, of the House of Representatives.
Pierre Menard,
President of tlie Legislative Council.
Approved — December 29, 1817,
Ninian Edwards.
laws of 1817—1818 303
An Act to authorise the establishment of an additional Ferry at
Shawnoetown.
Be it enacted by the Legislative Council and House of Representa-
tives of the Illinois territory, and it is hereby enacted by the authority
of the same, That Adolphus F. Hubbard, be, and he is hereby author-
ised to establish a Ferry on his land, adjoining' the town of Shawnoe-
town, under the same restrictions and conditions as other ferries
are laid under by law: Provided, however, that no order of court,
nor previous application shall be necessary in order to establish said
ferry; provided, that the said Adolphus F. Hubbard shall have the
ferry in complete operation within three months from the passage
hereof.
This act to be in force from and after the passage thereof.
George Fisher,
Speaker of the House sf Representatives.
Pierre Menard,
President of the Legislative Council.
Approved — December 29, 1817,
Ninian Edwards.
An Act to provide seals for the several Counties in this Territory.
Be it enacted by the Legislative Council and House of Representa-
tives of the Illinois territory, and it is hereby enacted by the author-
ity of the same, That the several courts in each county are hereby
authorized to procure seals in all cases where seals are required by
law, and make appropriations out of the county levy, for defraying
the expense of the same.
This act to take effect from and after its passage.
Willis Hargrave,
Speaker pro tern, of the House of Representatives.
Pierre Menard,
President of the Legislative Council.
Approved — December 29, 1817,
Ninian Edwards.
An Act defining the duty of Sheriffs in certain cases, and for
other purposes.
Be it enacted by the Legislative Council and House of Represen-
tatives of the Illinois territory, and it is hereby enacted by the author-
304 ILLINOIS HISTORICAL COLLECTION'S
ity of the same, That in all cases where an indictment or presentment
shall be found by the grand jury of any county of this territory, at
any term of any court where a grand jury may be impannelled, and
a capias, or venire facias is awarded to arrest the defendant, it shall
be lawful for the sheriff in all cases, when the offence does not amount
to felony, to take bail for his appearance at the term to which the writ
is made returnable ; which bail shall be bound in a recognizance to
the United States, and shall be liable in the manner hereafter pointed
out.
Sec. 2. And be it further enacted, That in all cases where the
offence charged shall amount to felony, it shall be the duty of the
sheriff arresting the defendant to commit him to the jail of the county
where the offence was committed : Provided, however, that the said
defendant may apply to any judge of the general court or circuit
court or any two judges of the county court, or court of common
pleas of the county in which he may be arrested, who are hereby
authorised to admit the said defendant to bail, or commit him to jail,
as he or they may think justice requires, or the law of the land will
justify.
Sec. 3. And be it further enacted, That all recognizances taken
as aforesaid by any sheriff, and all recognizances entered into any
court whereby any person or persons are bound to appear in any court
at any term of said court, or on any day, or to abide the order of said
court, if the said defendant or defendants should make default,
whereby his or their recognizance is or are forfeited to the United
States; all such forfeitures may be recovered by a scire facias issued
against said defendant or defendants, for the amount of said recogni-
zance, and be proceeded on according to law.
This act to take effect and be in force from and after the passage
thereof.
Willis Hargrave,
Speaker pro tern, of the House of Representatives.
Pierre Menard,
President of the Legislative Council.
Approved — December 29, 1817,
Ninian Edwards.
laws of 1817—1818 305
An Act directing the mode of perpetuating testimony in this territory.
Be it enacted by the Legislative Council and House of Represen-
tatives of the Illinois territory, and it is hereby enacted by the author-
ity of the same, That on the petition of any person or persons to one of
the judges of the circuit court, or general court, or county court now
established, or hereafter to be established in this territory, praying
for a dedimus to take the deposition or depositions of any person or
persons named therein within this territory, the petition setting forth
that the testimony is to perpetuate the remembrance of any fact,
matter or thing which may relate to the boundaries of lands, improve-
ments of lands," name or former name of water courses, the name or
former name of any portion or disirict of country, or regarding the
ancient customs, laws, or usages of the inhabitants of this country,
as far as the same may relate to the future settlements of land claims,
or touching the pedigree, titles to slaves, or any other matter or thing,
necessary to the security of any estate real or personal, or any other
personal right, particularly specifying the fact or facts intended to be
proved, and supported by the affidavit, or affirmation of the applicant,
that the fact or facts stated in his petition he believes to be true, the
said judge shall award a dedimus directed to any two justices of the
peace, or to any of the clerks of the circuit court, or court of appeals,
in the county where such testimony is to be taken, for the purpose of
taking such deposition or depositions prayed for in the petition :
Provided, however, that it shall be the duty of the person or persons
praying for a dedimus, for the purpose before mentioned, before pro-
ceeding to take the deposition or depositions, to give one month's
previous notice, with a copy of the petition annexed, to each and every
person that may be known to be interested in the matter, to be the
subject of the deposition or depositions, or to his or her, or their at-
torney, or in case the person be a married woman, the notice to be
served on her husband, or if a minor or minors to be served on his,
her or their guardian, or if the guardians should be interested, then
a guardian to be chosen by the court for that purpose ; and the said
notice shall contain information of the time and place when the said
testimony is to be taken, or in lieu of a written notice, he, she or they
shall cause the notice in form as aforesaid, with a copy of the petition
addressed to whom it may concern, to be published once a week for
one month, which shall be at least two months previous to the day of
306 ILLINOIS HISTORICAL COLLECTIONS
taking such deposition, in at least one of the public newspapers,
printed in this territory.
Sec. 2. And be it further enacted, That the said justices of the
peace, or clerks as aforesaid, shall attend at the time and place ap-
pointed, where each and every person who may think himself or
herself interested in the deposition about to be taken, may attend by
themselves or attornies, and may examine and cross-examine, such
deponent or deponents ; and all the questions and answers shall be
reduced to writing and enclosed in such deposition ; and the said
deposition, being reduced to writing in the English, or in the language
of the deponent, if the deponent does not understand the English
language ; and moreover as near as possible in the very words of the
witness, and distinctly read over to said witness, and subscribed by
such witness ; and the said justice of the peace or clerk as aforesaid,
shall administer an oath or affirmation to the truth of the deposition
so taken, and shall certifiy the same deposition, and within thirty
days thereafter transmit the same to the county court where the land
or property is situated or supposed to be situated, that may be
effected by the deposition ; and the said clerk shall in his ex officio duty
as recorder, record the same, and shall certify on the back of the
deposition, that the same has been duly recorded, and return it to
the person or persons who first prayed for the same ; and the justice
of the peace and the clerk of the court, shall receive such fees as are
allowed to them for similar services.
Sec. 3. And be it further enacted, That a deposition or deposi-
tions, taken in manner and form, and certified as in this act before
mentioned, or a duly certified copy of the record of any such deposi-
tion, may in case of the death of any such deponent, or in case of in-
ability to give testimony, in consequence of his, her or their insanity,
or imbecility of mind, or rendered incompetent, by judgment of law.
or in case of his, her or their removal, so that their testimony cannot
be obtained in the ordinaiw way, on trial may be used as evidence,
in any cause to which it may relate: Provided, that nothing in this
act contained shall be so construed as to prevent any and all legal
exceptions being made and allowed to the reading such deposition or
depositions, on any trial or trials at law, or in equity, in which the
same may be introduced as evidence.
laws of 1817—1818 307
This act to take effect and be in force from and after its passage
thereof.
Willis Hargrave,
Speaker pro tern, of the House of Representatives.
Pierre Menard,
President of the Legislative Council.
Approved — December 29, 1817,
Ninian Edwards.
An Act supplementary to an act entitled, an act subjecting real
estate to sale for debt, passed the seventeenth day of September,
eighteen hundred and seven.
Be it enacted by the Legislative Council and House of Represen-
tatives of the Illinois territoiy, and it is hereby enacted by the author-
ity of the same, That whenever a judgment shall be rendered against
any defendant or defendants, in any court of record in this territory,
and he or they do not produce sufficient personal estate to satisfy
such judgment, if such defendant or defendants shall either in his
or their own name or names, or the name or names of any other per-
son or persons, have purchased any lands from the United States,
entered in any of the land offices in this territory, and shall not have
paid the whole of the purchase money for said land, it shall and may
be lawful for the party or parties obtaining such judgment or judg-
ments, to demand of the clerk of the court in which such judgment
or judgments may have been rendered, an execution directed to the
sheriff or coroner, as the necessity of the case may require, of the
county in which the land lies, authorising such sheriff or coroner,
as the case may be, to levy upon said land, and expose the same to
sale in the same manner after giving the same notice that is required
in case of the sale of any other lands, by virtue of the act to which
this is a supplement.
Sec. 2. And be it further enacted, That when any such sale as
aforesaid shall be made, it shall be the duty of the sheriff to specify
in his notice where the land lies, designating the section or quarter
section, the township and range ; and also to state the number of in-
stalments that remain unpaid.
Sec. 3. And be it further enacted, That whenever any sheriff
shall levy upon any land or lands as the property of any defendant
or defendants, which have been entered and purchased in the name
308 ILLINOIS HISTORICAL COLLECTIONS
or names of any other person or persons, and the person or persons
in whose name or names the same have been entered, shall claim the
same, it shall be the duty of said sheriff to return the execution or
executions thus levied, to the next circuit court or court of common
pleas, to be held in his county, with a list or memorandum of the lands
which have been levied upon, stating the name or names of the party
or parties claiming the same ; and it shall be the duty of the clerk to
issue a notice in writing, directed to the sheriff of the county in which
the judgment was obtained, requiring to notify the party or parties
at whose instance the execution or executions issued, that the land has
been claimed, and by whom ; and that he must appear at the next
succeeding court to which the execution is made returnable, to shew
cause why the said lands should not be released from any further
claim on the part of the said party or parties, at whose instance the
said execution or executions were issued ; and it shall be the duty
of such sheriff to serve said notice on said party or parties, if he
or they may be found in his bailiwick; and if he or they are not
to be found, to be served on his or their agent or attorney ; and it
shall be the duty of said clerk to whom such execution and claim are
returned, to enter the case on his docket at the head of the returns
to that term of said court.
Sec. 4. And be it further enacted, That it shall be the duty of
the court to which they are returned, to order a jury to be summoned
as in jury trials, and determine in a summary way the right of
property, according to the rules of equity ; and if the jury shall decide
that the land in dispute is according to equity, the property of the
defendant or defendants ; against whom such execution or executions
issued, the party at whose instance the original execution or executions
issued, shall be entitled to sue out a new execution ; and after giving
the same notice that was at first required, the said land shall be ex-
posed to sale.
Sec. 5. And be it further enacted, That when any such land as
aforesaid, shall be sold at sheriff's sale for the satisfaction of execu-
tion or executions, the sheriff selling the same, shall give a deed or
deeds to the person or persons purchasing the same, mentioning in
said deed or deeds, the interest which is thereby conveyed.
Sec. 6. And be it further enacted, That when the sheriff as afore-
said shall levy on land as aforesaid, entered in the name of any other
person or persons than his, as whose property it is taken, and such
laws of 1817—1818 309
other person or persons shall claim the same, it shall and may be
lawful for the party at whose instance the same has been levied upon,
to file his written interrogatories to the party claiming the same, re-
quiring him to state on oath the nature of his or their claim, and
whether the land has been in fact entered for their benefit, and to be
paid for with their money or not ; and it shall be the duty of the party
to whom such interrogatories are addressed, to answer the same on
oath ; and a failure to answer in a reasonable time, shall amount to a
relinquishment of claim, and the court shall proceed to enter a judg-
ment in such case against such claimant, for ten per cent, on the
amount of said execution, and an order for the sale of said lands, which
were originally levied upon.
Sec. 7. And be it further enacted, That the said parties shall
have the right of summoning and coercing the attendance of wit-
nesses as in other cases ; and the trial of the right of property as
aforesaid, shall be conducted as far as relates to continuances as an
original action : — Provided however, that such trial shall be had at
the first term to which the execution is returnable, if neither party
shew good cause for a continuance.
This act to be in force from and after the passage thereof.
George Fisher,
Speaker of the House of Representatives.
Pierre Menard,
President of the Legislative Council.
Approved — January 2, 1818,
Ninian Edwards.
An Act to divorce Elizabeth A. Sprigg from the banns of matrimony.
WHEREAS, it has been represented to this legislature, that
Elizabeth A. Sprigg has been shamefully abandoned by James Sprigg,
her husband, and that the said James Sprigg has and does still con-
tinue to live in the most shamef nl incontinency : And whereas, it has
been represented to this legislature, that said Elizabeth A. Sprigg
must be considerably injured if she cannot obtain a divorce sooner
than in the ordinary way : Therefore,
Be it enacted by the Legislative Council and House of Represen-
tatives of the Illinois territory, and is it hereby enacted by the author-
ity of the same, That the banns of matrimony heretofore existing be-
tween the said Elizabeth A. Sprigg and James Sprigg her husband,
310 ILLINOIS HISTORICAL COLLECTIONS
be, and the same are hereby dissolved ; and that the said Elizabeth be,
and she is hereby divorced from her said husband.
This act to be in force from and after the passage thereof.
George Fisher,
Speaker of the House of Representatives.
Pierre Menard,
President of the Legislative Council.
Approved — January 6. 1818,
Ninian Edwards.
An Act to authorise William Morrison of Kaskaskia, to build a Float-
ing Bridge over the Kaskaskia river, in the county of Washington.
Be it enacted by the Legislative Council and House of Represen-
tatives of the Illinois territory, and it is hereby enacted by the author-
ity of the same, That William Morrison be authorised and permitted
at his own individual expense, to build and establish for the term of
seven years, a Floating Bridge over the Kaskaskia river, in the county
of Washington, at any eligible point that may be designated by the
commissioners appointed to fix and establish the permanent seat of
justice for said county : Provided, nevertheless, that the place so desig-
nated by the commissioners, or a majority of them, shall be at some
point, between the mouths of Shoal and Crooked creeks ; and it shall
be the duty of the said commissioners or a majority of them, within
five days after they have fixed and decided upon the permanent seat
of justice for said county, to proceed to examine the ground on both
sides of the river, between the points before mentioned, and faithfully
take into view the situation of the country and eligibility thereof, to
obtain the best possible ground for a road from thence to the road
leading from Vincennes to St. Louis or Belleville ; and having fixed
and determined upon the most eligible in their opinion, to promote
public convenience, they shall report the same under their hands and
seals, to the first county court that may sit in the county, and the
court shall record the same: Provided also, that the said William
Morrison,, shall be bound to pay to the said commissioners the sum of
two dollars per day each, for the time in which they may necessarily
be employed in fixing on said place.
Sec. 2. Be it further enacted, as a compensation for erecting and
establishing a Floating Bridge as aforesaid, that the said William
Morrison, may charge and receive as toll therefor, the same rates as are
laws of 1817—1818 311
allowed by law, to those that keep Ferries on the said river, for seven
years, from and after the completion of the said bridge ; but it is
provided that the said bridge shall be so constructed as not to injure
the navigation of said river. «
Sec. 3. Be it further enacted, That the said William Morrison,
shall not be interrupted, or be injured by any other persons building
a bridge or establishing a ferry, within three miles of his bridge, for
the space of seven years.
Sec. 4. Be it further enacted, That if the said William Morrison
fails or refuses to enter and purchase the land from the United
States, or the proprietor or proprietors, that may own the same, and
erect, establish and finish the building of the said bridge within two
years, then and in that case, he shall forfeit all claim to the benefit
of this act.
This act to take effect and be in force from and after the rising of
the legislature.
George Fisher,
Speaker of the House of Representatives.
Pierre Menard,
President of the Legislative Council.
Approved — January 6, 1318,
Ninian Edwards.
An Act to establish the line between the counties of St. Clair and
Madison.
Be it enacted by the Legislative Council and House of Represen-
tatives of the Illinois territory, and it is hereby enacted by the author-
ity of the same, That a line beginning on the Mississippi river between
townships two and three, north of the base line ; thence east along the
said township lines, to the eastern boundaries of the said counties,
shall be the division line between the said counties of St. Clair and
Madison.
This act to take effect from and after its passage.
George Fisher,
Speaker of the House of Representatives.
Pierre Menard,
President of the Legislative Council.
Approved — January 6, 1818.
Ninian Edwards.
312 ILLINOIS HISTORICAL COLLECTIONS
An Act declaring Big Muddy River a Navigable stream.
Be it enacted by the Legislative Council and House of Represen-
tatives of the Illinois territory, and it is hereby enacted by the author-
ity of the same, That Bi§ Muddy river from the mouth up to the shoal
where the road leading from Shawnoetown to Kaskaskia crosses said
river, be, and the same is hereby declared navigable : Provided, that
the said stream may be used for the carrying on any mill, or other
water works as heretofore, provided the navigation thereof is not there-
by obstructed.
This act to take effect and be in force from and after the passage
thereof.
George Fisher,
Speaker of the House of Representatives.
Pierre Menard,
President of the Legislative Council.
Approved — January 6, 1818,
Ninian Edwards.
An Act forming a new County out of the County of St. Clair.
Be it enacted by the Legislative Council and House of Represen-
tatives of the Illinois territory, and it is hereby enacted by the author-
ity of the same, That all that district of country within the follow-
ing bounds and limits to-wit : Commencing at the north west corner
of township No. two, north of range No. five west ; thence east to the
north east of township No. two north on the third principal meridian
line ; thence south with the said meridian line to the south east corner
of township No. three south ; thence west to the south west corner
of township three south of range five west ; thence north between
ranges five and six west to the beginning, shall constitute a separate
and distinct county, to be called Washington : and the seat of justice
for said county shall be the house of James Bankson, until it shall be
permanently established, in the following manner, that is to say, there
shall be appointed five persons, to-wit: Jacob Turman, Thomas Rat-
tan, Leven Maddux, Reuben Middleton and James Fisher, who, or
a majority of them, being duly sworn before some judge or justice
of the peace of this territory, faithfully and impartially to take into
view the situation of the settlement, the geography of the county,
the convenience of the citizens, and the eligibility of the place, shall
laws of 1817—1818 313
meet on the first Monday in March next, and proceed to examine and
determine on the place for the permanent seat of justice, and designate
the same: Provided, that the proprietor or proprietors of the land
shall give to the counter, for the purpose of erecting public buildings,
a quantity of land at said place not less than twenty acres, to be laid
off in lots and sold for the above purpose. But should the proprietor
or proprietors neglect or refuse to make the said donation as afore-
said, then and in that case, it shall be the duty of the said commis-
sioners to fix and decide upon some other spot or place for the seat of
justice, as convenient as may be to the present and future settlements
of said county ; or should the said commissioners fix it upon lands be-
longing to the United States, in that case the judges of the said county,
or any two of them, may apply to the Register of the land office in
which the land lies, and in behalf of the said county, purchase one
quarter section, for the use of the county, and the seat of justice
shall be established thereon, and the county shall be bound for the
purchase money; which place when fixed upon and determined, the
said commissioners shall certify under their hands and seals, and
return their certificate of the same to the next county court, or court
of common pleas, in the county aforesaid : and as a compensation for
their services, they shall be allowed two dollars for every day they
may be necessarily employed in fixing the aforesaid seat of justice,
to be paid out of the county levy ; which said court shall cause an entry
thereof to be made upon their records.
Sec. 2. Be it further enacted, That the citizens of St. Clair and
Washington counties that are entitled to vote, may at any election
for a member of the legislative council, and members to the house of
representatives to represent said district, proceed to vote at their
respective seats of justice for such member ; and it shall moreover be
the duty of the sheriff of the said county of Washington, within ten
days after the close of said election, to attend at the court-house of
the county of St. Clair, with a statement of the votes given in the
said county of Washington, to compare the polls of the respective
counties; and it shall be the duty of the sheriffs of St. Clair and
Washington, to attend at such time and place, with a statement of the
votes of St. Clair and Washington counties ; and upon counting the
votes of the said counties, it shall be the duty of the sheriffs of St.
Clair and Washington to make out and deliver to the persons duly
elected a certificate thereof. If the said sheriffs or either of them,
314 ILLINOIS HISTORICAL COLLECTIONS
shall refuse or fail to perform the duty required of them by this sec-
tion, such delinquent shall forfeit and pay the sum of two hundred
dollars to be recovered by action of debt, or indictment in any court
having jurisdiction, one half to the use of the territory, the other half
to the use of the person suing- for the same.
Sec. 3. Be it further enacted, That the citizens of Washington
county are hereby declared to be entitled in all respects to the same
rights and privileges in the election of a delegate to congress of this
territory, as are allowed to other counties ; and all elections are to be
conducted at the same time, and in the same manner as provided for
other counties in this territory.
This act to take effect and be in force from and after its passage
thereof.
Willis Hargrave,
Speaker pro tern, of the House of Representatives.
Pierre Menard,
President of the Legislative Council.
Approved — January 2, 1818,
Ninian Edwards.
An Act supplemental to an act entitled, an act supplementary to the
several laivs for levying and collecting a tax on Land.
Be it enacted by the Legislative Council and House of Represen-
tatives of the Illinois territory, and it is hereby enacted by the author-
ity of the same, That it shall be the duty of the several sheriffs to pay
over to the territorial Treasurer, the amount of the tax on land col-
lected by them respectively, in current bank notes, or gold and silver
coin, or audited paper of the territory ; and if any such sheriff shall
fail or neglect to pay over to the said Treasurer the whole amount of
taxes on land which he may have collected, or which by law he ought
to have collected, on or before the tenth day of December, yearly and
every year, every such sheriff for such failure or neglect shall forfeit
and pay one per centum on all such amount for each and every day
thereafter until the same shall be paid ; and it is hereby made the
duty of said Treasurer to charge every such sheriff with the per cen-
tum aforesaid, and to exact the same upon settlement : Provided, how-
ever, that nothing in this act contained shall be so construed as to
prevent the auditor of public accounts from giving the several sheriffs
laws of 1817—1818 315
aforesaid, credit for the delinquencies, or for lands he, or they could
not sell according- to law.
This act to take effect and be in force from and after the first
day of June next.
George Fisher,
Speaker of the House of Representatives.
Pierre Menard,
President of the Legislative Council.
Approved — January 6, 1818,
Ninian Edwards.
An Act providing for taking the census of the inhabitants of the
Illinois territory, and for other purposes.
Be it enacted by the Legislative Council and House of Represen-
tatives of the Illinois territory, and it is hereby enacted by the author-
ity of the same, That there shall be appointed by the Governor, some
fit person in each county within this territory, whose duty it shall be
to take a list of all citizens, of all ages, sexes and colour, within their
respective counties, particularly noting whether white or black, and
also noting particularly free male inhabitants above the age of twenty-
one years.
Sec. 2. Be it further enacted, That each commissioner before he
enters on the duties of his office, shall take and subscribe, before some
justice of of the peace, or judge of the county court, the following
oath, or affirmation, viz : "I, A B, of the county of do solemnly
swear, or affirm as the case may be, that I will well and truly make a
just and perfect enumeration of all persons residents within the
county of to the best of my ability, and return the same to the
Secretary of the territory according to law. ' '
Sec. 3. Be it further enacted, That the said commissioners so
appointed, shall commence on the first clay of April, and shall finish
and make return to the secretary's office on or before the first day of
June next ; and it shall be the duty of said commissioners to make the
said enumeration, by actual enquiry at the dwelling house, or of the
head of every family in their respective counties, and not otherwise.
Sec. 4. Be it further enacted, That the said commissioners shall
each receive as a full compensation for the above services, and for
services hereinafter mentioned the following sums to-wit : the com-
missioner for the county of Bond, $40 ; St. Clair, $70 ■ Madison, $70 ;
316 ILLINOIS HISTORICAL COLLECTIONS
Washington, $45; Monroe, $45; Randolph, $60; Jackson, $40; John-
son, $70 ; Union, $70 ; Gallatin, $70 ; White, $70 ; Edwards, $70 ; Craw-
ford, $80 ; Franklin, $40 ; Pope, $40 ; to be paid out of their respective
county treasuries.
Sec. 5. Be it further enacted, That the said commissioners shall
observe the following* form in taking the enumeration, viz.
Names of heads of families,
Free white males, twenty-one years and upwards,
All other white inhabitants,
Free people of colour,
Servants or slaves.
Sec. 6. Be it further enacted, That every person whose usual
place of abode shall be in any family on the aforesaid first day of
April, shall be returned as of such family.
Sec. 7. Be it further enacted, That each and every free person
more than sixteen years of age, whether heads of families or not, be-
longing to any family within any of the counties in this territory,
shall be and are hereby required to render to the said commissioners,
if required, a true account, to the best of his or her knowledge, of all
and every person belonging to said family respectively, on pain of
forfeiting twenty dollars, to be sued for and recovered before any
justice of the peace of the county, one half for the person suing for
the same, the other half to the territory.
Sec. 8. Be it further enacted, That if any commissioner having
been appointed and qualified as such shall fail or refuse to perform
the several duties required by this act, he so offending shall forfeit
and pay the sum of two hundred dollars, one half to the use of the
person suing for the same, and the other half to the use of the
territory.
Sec. 9. Be it further enacted, That the commissioners to be ap-
pointed by virtue of this act, to take the census, in the several counties
in this territory, shall at the same time take in a list of county and
territorial taxes, from each and every person subject to taxation ; and
do and perform all the duties heretofore required of county commis-
sioners, in taking in a list of taxable property, and return a list of said
taxable property so taken in, into the clerk's office of their respective
counties according to law; any thing in any former law to the con-
trary notwithstanding.
laws of 1817—1818 317
This act to take effect and be in force from and after the passage
thereof. George Fisher,
Speaker of the House of Representatives.
Pierre Menard,
President of the Legislative Council.
Approved — January 7, 1818,
Ninian Edwards.
An Act supplemental to an act entitled, an act for taking the census
of the inhabitants of this territory.
WHEREAS, it is doubtful whether the prayer of this general
assembly to congress, requesting that the citizens of this territory
may be permitted to form a state government will be granted, before
a census of the inhabitants of this territory shall be taken, and ex-
hibited to that honorable body : And whereas, a great increase of
population may be expected between the first day of next June and
December following : Therefore,
Be it enacted by the Legislative Council and House of Represen-
tatives of the Illinois territoy, and it is hereby enacted by the author-
ity of the same, That the commissioners to be appointed to take the
census of the inhabitants of their respective counties according to the
law to which this is a supplement, shall continue to take the census
of all persons who may remove into their respective counties between
the first day of June and the first day of December next, succeeding ;
of which additional returns shall be made to the secretary's office,
within the first week in December next, and for which additional
service, compensation shall be made at the next session of the general
assembly : Provided, however, that no such additional service shall
be performed if congress should authorise the citizens of this territory
to form a state government without it; and notice thereof be given
by the governor of the territory, in the newspaper printed at the seat
of government, by the public printers ; which notice it shall be the
duty of the governor to give if the fact should exist.
This act to take effect from and after its passage.
George Fisher,
Speaker of the House of Representatives.
Pierre Menard,
President of the Legislative Council.
Approved — January 10, 1818.
Ninian Edwards.
318 ILLINOIS HISTORICAL COLLECTIONS
An Act to organize the Militia of Crawford County, and for other
purposes.
Be it enacted by the Legislative Council and House of Represen-
tatives of the Illinois territory, and it is hereby enacted by the author-
ity of the same, That it shall and may be lawful for the governor of
this territory, to constitute and organise such part of the eighth regi-
ment as lies within Crawford county into a separate regi-
ment; the commanding officer of which, shall have the same powers
and perform the same duties as other lieutenant colonels.
Sec. 2. Be it further enacted, That it shall and may be lawful
for the governor of the territory, to appoint to each brigade in this
territory, a brigade inspector, who shall exercise all the power, and
perform all the duties required or performed by the adjutant-general,
prior to the twenty-sixth clay of December, eighteen hundred and
twelve.
This act to take effect from and after the passage thereof.
George Fisher,
Speaker of the House of Representatives.
Pierre Menard,
President of the Legislative Council.
Approved — January 5, 1818,
Ninian Edwards.
An Act to incorporate the Town of Kaskaskia.
Be it enacted by the Legislative Council and House of Represen-
tatives of the Illinois territory, and it is hereby enacted by the author-
ity of the same, that the following persons be, and they are hereby
appointed trustees of the town of Kaskaskia, to continue in office until
the first Monday in May next, and until the election of their successors,
as hereinafter provided, to-wit : John M'Ferron, Shadrach Bond,
Henry Bienvenue, Antoine Ravel and Elias K. Kane.
Sec. 2. Be it further enacted, that the holders of lots in said
fown, being residents thereof, or being in possession of any lot or
lots, and holding a bond for conveyance, shall be, and they are hereby
authorised to elect five trustees annually, on the first Monday in May :
That it shall be the duty of the sheriff of Randolph county to give
twenty clays previous notice in writing, at the door of the court house
of said county, that such an election will be holden ; and also to super-
laws of 1817—1818 319
intend and conduct the same ; and may employ a clerk to assist him
in keeping the poll ; for which services, compensation shall be made
by the trustees.
Sec. 3. Be it further enacted, That the trustees shall have power
to appoint a clerk to their board, and to appoint a town constable ; it
shall be the duty of the clerk to assess and value annually all the
lots in said town and make a return thereof to the trustees, having
previously taken an oath before some justice of the peace, truly and
impartially to perforin the same ; but in the valuation of the said lots,
the houses and other improvements erected thereon, shall not be
taken into consideration.
Sec. 4. And be if further enacted, That upon the return of such
list of assessment and valuation by the clerk, the trustees shall levy a
tax on each owner of a lot or lots, at a rate not exceeding two per
centum per annum, on the valuation of said lots, for paying such
expenses as have heretofore accrued for surveying the streets, and
for paying the expenses of their officers, clearing and keeping in
repair the streets and such other improvements as may be deemed
expedient and necessary, by the board of trustees.
Sec. 5. And be it further enacted, That it shall be the duty of
the clerk annually, after the trustees shall have fixed the rate of taxa-
tion, to place the amount on each lot in the list, and deliver the same
to the town constable, who shall collect the same from the several
persons charged therewith ; but before he enters on the duties of his
office, he shall give bond and security to the trustees and their succes-
sors in office, in double the sum to be collected, conditioned for the
faithful collection and accounting for the same according to law ; and
shall moreover take an oath before some judge or justice of the peace
of the county, that he will faithfully and impartially execute the
duties of his office to the best of his abilities according to law. The
said constable shall by sale of the lots or otherwise, collect and account
with the trustees for the amount of the taxes put into his hands for
collection, within three months from the time the list shall be put
into his hands for collection ; and for the collecting of the said taxes,
the trustees shall allow the said constable a sum not exceeding ten
per cent, on the amount collected. The said constable shall make per-
sonal application to the person or persons charged with the tax in
the list, if they be residents of the said town, before he shall expose
to sale any lot or other property, to make the amount of the tax due,
320 ILLINOIS HISTORICAL COLLECTIONS
and if the amount be not paid to the constable within one month after
such application, it shall and may be lawful for the constable to
seize any personal property of any such delinquent, which he may
find in said town; and after having given ten days. previous notice
in writing at the door of the court house of the county to make sale
thereof, or so much as will pay the tax and costs of keeping the prop-
erty; and in case the constable cannot find any personal property,
whereof he can make the taxes due from any person charged with
the taxes aforesaid, it shall and may be lawful for the constable to sell
the whole, or so much of each lot at public sale, after having given
three weeks previous notice in some public newspaper, printed in said
town, as will pay the tax due thereon, and the cost of advertising;
and shall give the purchaser or purchasers a certificate thereof,
which shall vest the title completely in the purchaser, in whose name
soever the same shall be sold, unless the same shall be redeemed by
the owner, by paying to the purchaser within twelve months after such
sale, the amount of the purchase money with one hundred per centum
thereon • Provided however, that in case there shall be no bidder for
any lot or lots thus exposed to sale, the same shall be struck off by the
constable in the name of the trustees, for the use of the said town ; and
the constable shall certify the same accordingly, and the title shall be
vested in the trustees in the same manner and under the same restric-
tions, as if the same had been sold to any other purchaser or pur-
chasers.
Sec. 6. Be it further enacted, That on the death, resignation or
removal of any one or more of the trustees, the vacancy shall be filled
by the remaining trustees, who shall appoint a successor or succes-
sors to continue in office until the next election ; and in case there
should not be an election held for trustees at the time appointed by
this act, the last trustees in office shall continue in office until the next
annual election.
Sec. 7. And be it further enacted, That the trustees of said town,
or a majority of them, shall have power and authority to make such
bye-laws, rules and ordinances, for the good regulation of the said
town and the commons attached thereto as shall to them seem meet, if
not inconsistent with the laws of this territory, or the ordinance,
and cause the same to be published in. the most public place in said
town, from time to time, for the information of all the citizens thereof.
And it shall be the duty of the said trustees to assign some piece of
laws of 1817—1818 321
ground on the commons, near to said town, for a public burying
ground. And the said trustees may whenever they shall think proper,
on the application of the owner or owners of land adjoining said
town, and wishing to lay off the same into town lots, and have the
same attached to, and made a part of the said town, to cause a plan
thereof, to be connected to the existing plat of the said town, under
such conditions as the said trustees may deem necessary, not incon-
sistent with law ; and may require and take such bonds or obligations
with security, from such applicant as they may deem requisite.
Sec. 8. And be it further enacted, That it shall be the duty of the
said trustees to cause the streets of said town to be cleaned and kept
open, and cause the lines thereof to be perpetuated by proper stakes
or stones; and cause all ponds and stagnant pools of water to be
drained, which may be supposed detrimental to the health of the in-
habitants. The said trustees or a majority of them, shall have power
to direct all trespassers and persons not having a right, to be re-
moved from the commons, attached to the said town ; and may for
public use, permit such public buildings to be erected on any unap-
propriated lot or lots in said town, or the commons attached to the
same, as they may deem proper for the benefit of the said town
to order and direct. And the board of trustees for said town,
shall have power for and in behalf of said town to sue and be
sued, plead and be impleaded, in any suit or suits, real, personal, or
mixed in any courts in this territory.
Sec. 9. And be it further enacted, That any three of the trustees
of said town, shall be sufficient to constitute a board, and they may
direct the town constable to execute and observe, such rules and orders,
as they shall require to be executed and carried into effect.
This act to take effect and be in force from and after the passage
thereof.
George Fisher,
Speaker of the House of Representatives.
Pierre Menard,
President of the Legislative Council.
Approved — January 6, 1818,
Ninian Edwards.
322 ILLINOIS HISTORICAL COLLECTIONS
An Act for the relief of Thomas C. Brown, a member of the
Legislative Council
"WHEREAS, Thomas C. Brown, a member of the legislative
council was taken sick on his way to the seat of government, to attend
the legislature, and did not arrive until part of the session had elapsed :
Be it therefore enacted by the Legislative Council and House of
Representatives of the Illinois territory and it is hereby enacted by
the authority of the same, That the said Thomas C. Brown, shall
receive his per diem compensation from the commencement of the
present session of the legislature.
George Fisher,
Speaker of the House of Representatives.
Pierre Menard,
President of the Legislative Council.
Approved — January 10, 1818,
Ninian Edwards.
An Act providing for* the collection of the tax of one thousand eight
hundred and seventeen, and for other purposes.
WHEREAS, it has been represented to this legislature, that in
consequence of the change in the mode of taking in taxable prop-
erty, some counties have not assessed at all, and others have assessed
it after the time prescribed by law, the consequence of which is, there
has been in several counties no tax collected : For remedy whereof,
Be it enacted by the Legislative Council and House of Represen-
tatives of the Illinois territory, and it is hereby enacted by the author-
ity of the same, That it shall be lawful for the county court in any
county in this territory, where the property has been assessed prior
to the passage of this act, to order the sheriff of said county to pro-
ceed to collect the same, in, the same manner as if it had been assessed
agreeable to law.
Sec. 2. And be it further enacted, That it shall be the duty of
the county court in any county in this territory, where there has been
no assessment, or where the court shall be of opinion that such assess-
ment has only been a partial one, to appoint commissioners in each
township, who shall be qualified in the same manner, and perform
the' same duties, and receive the same emoluments, as specified in the
act entitled an act altering the mode of taking in taxable property,
laws of 1817—1818 323
passed the eleventh day of January, eighteen hundred and seventeen.
Sec. 3. Be it further enacted, That the several sheriffs shall pro-
ceed to collect the said county and territorial tax, so assessed and put
into his or their hands for collection, in the same manner, and under
the same rules, regulations and penalties, as near as may be, that are
prescribed by the above recited act : Provided, however, that all monies
which have been collected as tax, by any sheriff of any county, shall
be and is declared legal, as if the same had been assessed and collected
according to law.
Sec. 4. And be it further enacted, That the several counties from
which any portion of either of the counties of Union, Washington
and Franklin and Johnson have been taken, shall have the same
power of collecting the county levy, or territorial tax, which has been
assessed in said counties and remains unpaid, as though those counties
had not been erected.
Sec. 5. Be it further enacted, That the said counties from which
any portion of those new counties was taken, shall have the power to
issue their process into so much of those new counties as originally
belonged to them for the purpose of bringing to a final close, all busi-
ness now pending in said counties.
This act to be in force from and after the passage thereof.
George Fisher,
Speaker of the House of Representatives.
Pierre Menard,
President of the Legislative Council.
Approved — January 9, 1818,
Ninian Edwards.
An Act supplemental to an act entitled, an act for the removed and
safe keeping of the ancient records and papers of this territory,
passed the 25th day of December, 1812.
. Be it enacted by the Legislative Council and House of Represen-
tatives of the Illinois territory, and it is hereby enacted by the author-
ity of the same, That the secretary of the territory shall be entitled to
the same fees for each and every search of the ancient papers and
records of this territory, that were allowed to the recorder of Randolph
county, when said papers and records were in his possession.
324 ILLINOIS HISTORICAL COLLECTIONS
This act to be in force from and after the passage thereof.
George Fisher,
Speaker of the House of Representatives.
Pierre Menard,
President of the Legislative Council.
Approved — January 8, 1818,
.Ninian Edwards.
An Act to amend an act entitled, an act establishing courts for the
trial of small causes, passed the seventeenth day of September,
eighteen hundred and seven.
Be it enacted by the Legislative Council and House of Represen-
tatives of the Illinois territory, and it is hereby enacted by the author-
ity of the same, That so much of the above recited act as requires
defendants on stay of execution, when not a freeholder, to give securi-
ty in the nature of special bail, be, and the same is hereby repealed.
Sec. 2. And be it further enacted, That where judgment shall
be given against a person who is not a freeholder in the county where
such judgment shall be given or obtained, no stay of execution shall
be had, unless such person shall give good and sufficient security to
the adverse party, for the payment of the amount of the judgment
so obtained, within the times specified in the above recited act.
This act to take effect and be in force from and after the passage
thereof.
George Fisher,
Speaker of the House of Representatives.
Pierre Menard,
President of the Legislative Council.
Approved — January 9, 1818,
Ninian Edwards.
An Act supplemental to the acts establishing circuit courts, and
for the appointment of circuit attornies.
Be it enacted by the Legislative Council and House of Represen-
tatives of the Illinois territory, and it is hereby enacted by the author-
ity of the same, That the county of Washington shall hereafter be
attached to, and form a part of the first judicial circuit ; and the
county of Union to the second circuit and the county of Franklin
laws of 1817—1818 325
to the third circuit ; and the circuit attornies shall prosecute all pleas
on behalf of the territory, originating in said counties.
Sec. 2. Be it further enacted, That the United States' Judges
who hold the circuit courts in this territory, shall hold circuit courts
in the aforesaid counties of Washington, Union and Franklin, accord-
ing to the provision of the first section of this act.
Sec. 3. Be it further enacted, That the circuit courts in the
counties aforesaid shall be holden at the following times, to-wit : In
the county of Washington, on the third Mondays of February, June
and October ; in the county of Union, on the fourth Mondays of
August, April and December ; in the county of Franklin, on the fourth
Mondays of January, May and September.
Sec. 4. Be it further enacted, That said circuit attornies shall
each receive an annual salary of one hundred dollars, to be paid
quarterly out of the public or territorial treasury, and shall receive
the following fees, viz. for all indictments which are sustained for
treason, murder, or felony, the sum of fifteen dollars, and for indict-
ments or presentments, which are sustained by the courts for any
offence which is not felony, the sum of five dollars.
Sec. 5. In all cases where the party shall be convicted, the fees
aforesaid shall be paid by such convicted party, to be taxed in the
bill of costs against such defendent and collected accordingly : Pro-
vided, however', that where the party convicted shall not be able to
pay the fees aforesaid to the said attornies, it shall be paid out of the
county treasury.
Sec. 6. And be it further enacted, That all cases where an
indictment shall be sustained and the traverse jury shall find the
defendant not guilty the prosecuting attorney shall be entitled to the
same fees as are allowed for similar prosecutions, and to be paid by
the prosecutor.
This act to take effect from and after the passage thereof.
George Fisher,
Speaker of the House of Representatives.
Pierre Menard,
President of the Legislative Council.
Approved — January 9, 1818,
Ninian Edwards.
326 ILLINOIS HISTORICAL COLLECTIONS
An Act to authorise Joseph Smith to build toll bridges across the
Big and Little Beaucoup creeks.
Be it enacted by the Legislative Council and House of represen-
tatives of the Illinois territory, and it is hereby enacted by the author-
ity of the same, That Joseph Smith, be, and he is hereby authorised
to erect toll bridges across the Big and Little Beaucoup creeks, on the
road leading from Kaskaskia to Shawnoetown, and shall enjoy the
profits thereof, for twelve years from the passage of this act : Pro-
vided, the bridges are erected within one year from the passage hereof ;
and the said Smith shall receive such toll as the county courts may,
from time to time allow : provided also, that no toll bridge .shall be
erected within three miles either above or below the said bridges,
within the aforesaid twelve years.
This act to be in force from the passage thereof.
George Fisher,
Speaker of the House of Representatives,
Pierre Menard,
President of the Legislative Council.
Approved — January 10, 1818.
Ninian Edwards.
An Act to regulate the representation in certain Counties in the
General Assembly
Be it enacted by the Legislative Council and House of Represen-
tatives of the Illinois territory, and it is hereby enacted by the author-
ity of the same, That the counties of Johnson and Union shall be en-
titled to one member in the house of representatives ; and the qualified
voters in said comities may at any election for a member of the legisla-
tive council and house of representatives to represent said counties,
and the district of which they compose a part, proceed to vote at
their respective seats of justice for such members.
Sec. 2. Be it further enacted, That it shall be the duty of the
sheriffs of Johnson and Union, ten days after the close of the election, to
attend at the seat of Justice for Johnson county with a statement of the
votes given in their respective counties, to compare the polls, and upon
•counting the same, to give to the person duly elected as a member of
the house of representatives, a certificate thereof. It shall also be the
duty of the said sheriffs, and the sheriff of Pope county to attend at
laws of 1817—1818 327
the same time and place, with a statement of the votes given in their
respective counties for a member of the legislative council ; and on
comparing and counting said votes, to give the person duly elected
a certificate thereof.
Sec. 3. Be it further enacted, That the counties of Bond and
Washington, shall be entitled to one member in the house of represen-
tatives ; and that the qualified voters of said counties may vote for
the same at their respective seats of justice at the time prescribed by
law for such elections in other counties; and it shall be the duty of
the sheriffs, or their lawful deputies of said counties, within eight
days after the elections, to meet at the place called Hill 's ferry, on the
Kaskaskia river, with a statement of the polls of their respective coun-
ties ; and on comparing and counting the same, to give to the person
duly elected a certificate thereof : Provided, that nothing herein con-
tained shall be construed so as to change the right now secured to the
citizens of said counties, of voting for a member of the legislative coun-
cil, for the respective districts ; but the elections for that purpose,
shall be as heretofore prescribed.
Sec. 4. Be it further enacted, That the county of St. Clair shall
not hereafter be allowed to elect more than one member of the house
of representatives.
Sec. 5. Be it further enacted, That the qualified voters of said
counties, shall be allowed all the rights and privileges that are secured
to the qualified voters of other counties in the election of a delegate
to congress.
Sec. 6. All laws repugnant hereto shall be, and the same are
hereby repealed.
This act to take effect and be in force from and after its passage
thereof. _. _
George Fisher,
Speaker of the House of Representatives.
Pierre Menard,
President of the Legislative Council.
Approved — January 9, 1818,
Ninian Edwards.
An Act to incorporate the Stock holders of the Illinois Navigation
Company.
WHEREAS, Henry Bechtle, and his associates, citizens of the
United States of America, and proprietors of the town of America, in
328 ILLINOIS HISTORICAL COLLECTIONS
the county of Johnson, and territory of Illinois, purpose to improve
the navigation of the waters near the mouth of the Ohio river, in said
territory, by cutting Canals, erecting Locks, and other works as to
them shall seem necessary : and whereas, it is proper and advisable
to encourage so laudable an undertaking : Therefore,
Be it enacted by the Legislative Council and House of Represen-
tatives of the Illinois territory, and it is hereby enacted by the author-
ity of the same, That Henry Bechtle, and his associates, for the
purpose of cutting canals, erecting locks, and other works as aforesaid,
shall be, and hereby are made a corporation, in fact and in deed, by
the name of the President and Directors of the Illinois Navigation
Company, and by that name they and their successors shall have suc-
cession, and shall be persons in law, capable of suing and being sued,
pleading and being impleaded, answering and being answered unto,
defending and being defended, in all courts and places whatsoever, and
they and their successors shall be in law capable of purchasing, hold-
ing and conveying any estate, real or personal, for the public use
of said corporation, and may have and use a common seal, and the
same may break, alter and renew at pleasure ; and the president and
directors for the time being, or a major part of them, shall have power
to make and prescribe such rules and regulations, as to them shall
appear useful and proper, touching the management and disposition
of the stock, property and estate of the said corporation ; and touch-
ing the duties and conduct of the officers and agents employed therein ;
and touching all such matters as appertain to the said corporation,
with power to appoint such and so many officers, clerks, agents, ser-
vants and workmen, to be employed in and about the business and con-
cerns of the said corporation as they may deem necessary.
Sec. 2. Be it further enacted, That the capital stock of the said
corporation shall be divided into ten thousand shares, and each share
shall be one hundred dollars ; and that each stock-holder shall be en-
titled to a number of votes for the directors, proportioned to the num-
ber of shares which, he, or she shall have or hold in his or her name,
each share being entitled to one vote ; the shares subscribed shall be
paid in current money of the United States, and in such instalments
as the president and directors may order.
Sec. 3. Be it further enacted, That so soon as two thousand
shares shall have been subscribed, under the direction of the person
heretofore named, there shall be held at the town of Shawnoetown, in
laws of 1817—1818 329
said territory, an election for five directors, by the stock-holders en-
titled to vote as aforesaid, reserving the right to any stock-holder
to vote by his authorised agent or attorney ; and in case of the death
of any such stock-holder the right to vote, shall be exercised by his
executor or administrator; and a mojority of votes actually given,
shall determine such election of directors, who shall choose from among
themselves a president, and shall continue in office one year from
the time of such election, and until others are chosen ; and annually
thereafter there shall be an election for directors and president, as
aforesaid, at such place in said town of America, as the presi-
dent and directors shall designate, by public notice being given two
months previous to such election, in some public newspaper in said
territory ; and in case it should happen at any time that an election
for directors should not be held upon a day when pursuant to this
act it ought to have been holden, the said corporation shall not on
that account be dissolved, but it shall be lawful to appoint another
day in such manner as shall have been prescribed by the rules and ordi-
nances of the said corporation ; and in case of the death, resignation
or removal from office, of any president or director, his place may be
filled up by a new election for the remainder of the year, in such man-
ner as may be directed by the rules and ordinances of said corporation.
Sec. 4. Be it further enacted, That if any share-holder shall
fail to pay any instalment in one month after the same becomes due,
two months notice having been given as aforesaid, such share or shares
shall be publickly sold under such rules and regulations, as the said
president and directors shall provide ; and the money arising from such
sale, shall first be appropriated to the payment of the sum due the
said corporation, and the excess, if any, shall be paid to the delin-
quent; and in case such share or shares shall sell for less than the
amount due the corporation, the deficiency shall be recovered from
such delinquent share-holder by suit.
Sec. 5. Be it further enacted, That the president and directors
shall have power and authority to cut any canal from the Mississippi
to or near the said town of America, on the river Ohio, and erect such
locks, and otherwise improve, as to them shall seem advisable and
necessary, to complete the objects of the said corporation ; and the said
president and directors may carry on the said canal from place to
place, and from time to time as they may think proper ; and may build
such wharves as they may deem expedient ; and the president and
330 ILLINOIS HISTORICAL COLLECTIONS
directors for the time being, shall have power and authority to estab-
lish the rate of tolls, which shall not exceed twenty-five cents per ton,
for each and every ton which the boat or vessel passing through the
canal shall measure ; and for every boat or vessel, not exceeding six
tons, one hundred and fifty cents ; for every forty cubic feet of t imber,
plank or lumber of any description, there may be charged a toll of
twenty-five cents; the rate of wharfage, shall not exceed five cents per
ton, for each ton which the boat or vessel liable to wharfage shall
measure, for any time not exceeding five days ; and the said president
and directors for the time being, are hereby authorised to declare an
equal dividend semi-annually arising from the nett proceeds of the
profits accruing to the said corporation, after deducting the expenses
of repairs and contingent charges, to which the said corporation have
been subject.
Sec. 6. Be it further enacted, That the directors or a major part
of them, whenever they may deem it proper may call a meeting of the
stock-holders to consult or decide upon measures of importance, touch-
ing the concerns of said corporation, and such matter or measure shall
be decided upon by a plurality of votes.
Sec. 7. Be it further enacted, That no transfer of stock shall be
valid or effectual, until such transfer shall be entered or registered,
in a book or books to be kept for that purpose by the directors.
Sec. 8. Be it further enacted, That the bills obligatory and of
credit, under the seal of said corporation, which shall be made to any
person whatever, shall be assignable by endorsement thereupon, under
the hand of such person or his assignee, so as absolutely to transfer
and vest the property thereof in such assignee ; and to enable such
assignee to bring and maintain an action thereupon in his own name ;
and all bills or notes which may be issued by order of said corporation,
for the payment of money to any person whatever, or his order or to
bearer, though not under the seal of the said corporation, shall be
binding and obligatory upon the said corporation, in like manner and
with like force and effect, as upon any private person, if made by him,
and shall be assignable and negotiable in like manner, as if made by
such private person.
Sec. 9. Be it further enacted, That if the said corporation
should not have the fee simple property in the land through which
the aforesaid canal shall be cut, the president and directors aforesaid,
shall and may make application to any court of record in the county
laws of 1817—1818 331
where such land may lie, for a writ of ad quad damnum, having. first
given ten days previous notice to the proprietor or proprietors of such
land, if he or they are to be found in the county, if not, then to his
agent, if any he hath in the county ; or if no agent is to be found in
the county, then it shall be the duty of said president and directors,
to give public notice at the door of the court house of the proper
county, for two terms successively, that such application will be made,
and when notice shall be given as aforesaid, the court shall thereupon
order the clerk to issue such writ, directed to the sheriff of the county,
commanding him to summon twelve good and lawful men, to meet
on the land proposed to be occupied by the said corporation, for the
purpose of cutting a canal and erecting locks as aforesaid, on a day
certain to be named in the writ, of which due notice shall be given
by the said sheriff to said proprietor or proprietors, or his or their
agent or attorney, if to be found within the county ; and if the jury
so summoned shall be charged and sworn by the sheriff, who is hereby
empowered to administer such oath, impartially and to the best of their
judgment to view the land, proposed to be cut for said canal, having
due regard therein to the interest of both parties, and to appraise the
same according to its true value ; and the inquest so found, made and
sealed by the said jurors, together with the writ shall be returned by
the said sheriff to the next succeeding term of the court, from whence
such writ was issued ; and the said court shall thereupon order a sum-
mons to be issued to such proprietor or proprietors, his or their agent,
if to be found within the county, to shew cause if any there be, why
said applicants should not be permitted to cut said canal through his,
or their land, and if good and sufficient cause shall not be shewn to the
contrary, the said court are hereby empowered to permit the said
president and directors to cut said canal through the land of such
proprietor or proprietors, upon their paying to him, her or them, the
full amount of damages found by said jury ; but if any damage should
accrue to any person or persons in consequence of cutting said canals,
or- erecting such locks which was not foreseen and estimated by such
jury, the person sa injured shall not be debarred his right of action
for the same.
Sec. 10. Be it further enacted, That the said canal shall be so far
completed on or before the first day of January one thousand eight
hundred and thirty, as to admit of the passage of boats or vessels of
twenty tons burthen.
332 ILLINOIS HISTORICAL COLLECTIONS
Sec. 11. Be it further enacted, That it shall and may be lawful
at any and at all times, for the legislature of this territory, or the legis-
lature of the state, whenever a state government shall be formed, to
appoint a committee to examine into the state and condition of the con-
cerns, property and management of the said corporation; and such leg-
islature may alter at any time, the rates of toll and wharfage, and after
the year one thousand eight hundred and fifty, the whole of the profits
arising from the tolls and wharfage, shall be given to the territory
or state, when a state government shall be formed, to be by such state
or territory appropriated to its own use, beyond which time, the
corporation shall not continue, without the consent of the legislature.
Sec. 12. Be it further enacted, That after the first elections
of the president and directors, as aforesaid, all the business of the said
corporation shall be transacted at the town of America, and not else-
where.
Sec. 13. Be it further enacted, That if the aforesaid canal or
canals, shall not be so far completed as to admit of the passage of boats
or vessels of twenty tons burthen, from the Ohio to the Mississippi, on
or before the year one thousand eight hundred and thirty, it shall
be lawful for the legislature of the territory, or the state to be formed
out of the same, to dissolve the incorporation hereby granted.
Sec. 14. The total amount of debts which the said corporation
shall at any time owe, whether by bill, bond, note or other contract,
shall not exceed twice the amount of their capital stock, actually paid
for, together with the monies actually deposited with said corpora-
tion, for safe keeping ; and in case of excess, the directors under whose
administration it shall happen, shall be liable for the same in their
natural and private capacities, and an action of debt may be brought
against them or any of them, or any of their heirs, executors or admin-
istrators, in any court competent to try the same, or either of them,
by any creditor or creditors of said corporation. But this provision
shall not be construed to exempt the said corporation, or the lands,
tenements, goods and chatties of the same from being liable for, and
chargeable with the said excess. Such of the said directors as may
have been absent when the said excess was contracted or created,
who may have dissented from the resolution or act whereby it was
contracted or created, may respectively exonerate themselves from
being so liable by forthwith giving notice of the fact, and of their
laws or 1817—1818 333
absence, or dissent, at a general meeting of the stockholders, which
they shall have power to call for that purpose.
Sec. 15. Be it further enacted, That the said corporation shall
not at any time suspend or refuse payment in gold and silver of any
of its notes, bills or obligations, nor of any monies received upon de-
posit by said corporation ; and if the said corporation shall at any time
neglect or refuse to pay on demand any bill, note or obligation, accord-
ing to the contract, promise or undertaking therein expressed, or shall
neglect or refuse to pay on demand, any monies received on deposit,
to the person or persons entitled to receive the same, then, and in every
such case, the holders of such note, bill or obligation, or the person or
persons entitled to demand and receive the same, shall recover inter-
est on the said bills, notes, obligations or monies, until the same shall
be fully paid and satisfied, at the rate of twelve per cent, per annum,
from the time of such demand, as aforesaid : Provided also, that
the legislature of the territory, or of the state to be formed out of the
same, may at any time hereafter, enact laws to enforce and regulate
the recovery of the amount of the notes, bills, obligations or other
debts, of which payment shall have been refused, as aforesaid, with
the rate of interest above mentioned, vesting jurisdiction for this
purpose in any courts, either of law or equity, within this territory.
Sec. 16. Be it further enacted, That it shall and may be lawful
for the legislature, at any future period, to increase the stock of said
corporation, and "to take for the benefit of the territory or state to be
formed out of the same, any quantity of said increased stock, not
exceeding five thousand shares, with all the rights and privileges be-
longing to other stock-holders, and to be exercised in such manner as
the legislature may direct.
Sec. 17. Be it further enacted, That this act be, and it is hereby
declared to be a public act, and that the same be construed in all courts
and places, benignly and favorably for all beneficial purposes therein
mentioned.
George Fisher,
Speaker of the House of Representatives,
Pierre Menard,
President of the Legislative Council.
Approved — January 9, 1818,
Ninian Edwards.
334 ILLINOIS HISTORICAL COLLECTIONS
An Act to incorporate the Bank of Edwardsville.
WHEREAS, Benjamin Stephenson, John M'Kee, and others, by
their petition to the legislature, have prayed to be incorporated for
banking purposes : Therefore,
Be it enacted by the Legislative Council and House of Representa-
tives of the Illinois territory, and it is hereby enacted by the authority
of the same, That a Bank shall be established at Edwardsville, the
capital stock whereof, shall not exceed three hundred thousand dol-
lars, to be divided into shares of fifty dollars each ; one third thereof
may be subscribed for by the legislature of this territory, or state, when
a state government shall be formed, which state or territory shall be
entitled to such part of the dividend of the said corporation in pro-
portion to the amount actually subscribed by such territory or state,
which interest shall be divided into shares of fifty dollars each, in the
same manner as individual stock is divided ; and that subscriptions for
constituting the said stock, shall be opened at Edwardsville, and
at such other places as may be thought proper, under the superinten-
dance of such persons as shall hereafter be appointed ; which subscrip-
tion shall continue open from time to time, as shall be thought best
by the persons hereinafter mentioned : Provided however, that so soon
as there shall be fifty thousand dollars subscribed for in the whole,
and ten thousand thereof actually paid in, the said corporation may
commence business, and issue their notes accordingly.
Sec. 2. Be it further enacted, That it shall be lawful for any
person or partnership or body politic, to subscribe for such or so
many shares as he, she or they may think fit. The payment of the
subscriptions shall be made by the subscribers respectively, at the
time of subscribing there shall be paid five dollars on each share, in
gold or silver, or bank bills that will command the same ; and the resi-
due of the stock shall be paid at such times and in such instalments as
the directors may order : provided, that no instalment shall exceed
twenty-five per cent, on the stock subscribed for, and that at least
sixty days notice shall be given in one or more newspapers of the ter-
ritory: and provided also, that if any subscriber shall fail to make
the second payment, at the time appointed by the directors for such
payment to be made, shall forfeit the sum so by him, her or them, first
paid to and for the use of the corporation.
Sec. 3. Be it further enacted, That all those who shall become
subscribers to the said bank, their successors and assigns shall be, and
laws of 1817—1818 335
they are hereby enacted and made a corporation and body politic, by
the name and style of ' ' The President, Directors and Company of the
Bank of Edwardsville, " and shall so continue until the first day of
January one thousand eight hundred and thirty eight ; and by that
name shall be and are hereby made able and capable in law, to have,
purchase, receive, possess, enjoy and retain to them and their succes-
sors, lands, rents, tenements, hereditaments, goods, chattels and effects
of what kind, nature, or quality soever, to an amount not exceeding in
the whole, five hundred thousand dollars, including the capital stock
aforesaid. And the same to grant, demise, alien or dispose of, to sue
and be sued, to plead and be impleaded, answer and be answered,
defend and be defended, in courts of record, or any other place what-
ever ; and also to make, have and use a common seal, and the same to
break, alter and renew at pleasure ; and also to ordain, establish and
put in execution such bye-laws, ordinances and regulations, as they
shall deem necessary and convenient for the government of the said
corporation, not inconsistent with the laws of the territory, or consti-
tution, and generally to do, perform all and singular acts, matters and
things, which to them it shall or may appertain to do ; subject how-
ever, to the rules, regulations, limitations and provisions, hereinafter
prescribed and declared.
Sec. 4. Be it further enacted, That for the well ordering of the
affairs of the said corporation, there shall be nine directors, the first
election for whom, shall be by the stock-holders by plurality of votes
actually given on such day, as the persons appointed to superintend
the subscriptions for stock, shall appoint by giving at least thirty
days notice in one or more of the public newspapers of the territory ;
and those who shall be duly chosen at any election, shall be capable
of serving as directors, by virtue of such choice, until the full end
and expiration of the first Monda}r of January next, ensuing the time
of such election, and no longer; and on. the first Monday of January
of each and every year thereafter, the election for directors shall be
holden, and the nine directors after their first meeting after each
election, shall choose one of their number as president.
Sec. 5. Be it further enacted, That in case it should happen at
any time, that an election for directors should not be had upon any
day when pursuant to this act it ought to have been holden, the corpo-
ration shall not for that cause be considered as dissolved, but it shall
be lawful to hold an election for directors at any other day, agreeably
336 ILLINOIS HISTORICAL COLLECTIONS
to such bye-laws and regulations, as may be made for the government
of said corporation ; and in such case the directors for the time being,
shall continue to execute and discharge the several duties of directors
until such an election is duly had and made, any thing in the fourth
section to the contrary notwithstanding; and it is further provided,
that in case of death, resignation or removal from the territory of any
director or directors, the vacancy shall be filled by an election to be
held by the directors for the balance of the year.
Sec. 6. Be it further enacted, That a majority of the directors
for the time being, shall have the power to appoint such officers, clerks
and servants under them, as shall be necessary for executing the busi-
ness of the corporation ; and to allow them such compensation for
their services respectively as shall be reasonable ; and shall be capable
of exercising such other powers and authorities for the well governing
and ordering of the affairs of the said corporation, as shall be pre-
scribed, fixed and determined by the laws, regulations and ordinances
of the same : Provided always, that a majority of the whole number
of directors shall be requisite in the choice of a president and cashier.
Sec. 7. Be it further enacted, That the following rules, restric-
tions, limitations and provisions, shall form and be the fundamental
articles of the constitution Of the said corporation, to-wit : The num-
ber of votes to which the stock-holders shall be entitled in voting for
directors, shall be according to the number of shares, he, she, or they
may respectively hold.
II. None but a bona fide stock-holder, being a citizen of the terri-
tory, shall be a director; nor shall a director be entitled to any other
emoluments than such as shall be allowed by the stock-holders at a
general meeting; but the directors maj^ make such a compensation
to the president for his extraordinary attendance at the bank, as shall
appear to them reasonable and just.
III. Not less than four directors shall constitute a board for the
transaction of business, of whom the president shall always be one.
except in case of sickness, or necessary absence ; in which case, his
place may be supplied by any other director, whom he by writing
under his hand, may depute for that purpose.
IV. Any number of stock-holders not less than fifteen, who shall
be proprietors of not less than fifty shares each, shall have power to
call a general meeting of the stock-holders, for purposes relative to
the institution, by giving at least thirty days notice in one or more
laws of 1817—1818 337
public newspapers of the territory, specifying' in such notice the object
or objects of such meeting'; and may moreover appoint three of their
number as a committee to examine into the state and condition of the
bank, and the manner in which its affairs have been conducted :
Provided, that no member of such committee shall be a director, presi-
dent or other officer of any other bank.
V. Every cashier before he enters upon the duties of his office,
shall be required to give bond with two or more securities, to the
satisfaction of the directors in the sum of not less than ten thousand
dollars, conditioned for his good behaviour and the faithful perfor-
mance of his duty, to the said corporation ; and the other officers and
servants, shall also enter into bond and security, in such sum as the
president and directors may prescribe. The land, tenements and
hereditaments, which shall be lawful for the said corporation to hold,
shall be only such as shall be requisite for its immediate accommo-
dation, in relation to the convenient transaction of its business, and
such as shall have been bona fide mortgaged to it by way of security,
or conveyed to it by way of satisfaction, for debts previously con-
tracted in the course of its dealings, or purchased upon judgments,
which shall have been obtained for such debts.
VI. The total amount of debts which the said corporation shall
at any time owe, whether by bond, bill, note or other contract, shall
not exceed twice the amount of their capital stock actually paid over,
and above the monies then actually deposited in the bank for safe
keeping ; and in case of excess, the directors under whose administra-
tion it shall happen, shall be liable for the same, in their natural and
private capacities ; and an action of debt may be brought against them,
or any of them, their or any of their heirs, executors or administrators,
in any court competent to try the same, or either of them by any
creditor or creditors of the said corporation. But this provision shall
not be construed to exempt said corporation, or the lands, tenements,
goods or chattels of the same, from being liable for, and chargeable
with the said excess ; such of the said directors who may have been
absent when the said excess was contracted or created, or who may have
dissented from the resolution or act whereby it was contracted or
created, may respectively exonerate themselves from being so liable
by entering their protest against the same.
VII. The said corporation shall not directly or indirectly deal
or trade, except in bills of exchange, gold and silver, or in the sale of
338 ILLINOIS HISTORICAL COLLECTIONS
goods really and truly pledged for money lent, and not legally re-
deemed in due time, or of goods which shall be the proceeds of its
lands; neither shall the said corporation take more than at the rate
of legal interest allowed by the territory, or state formed out of the
same, for or upon its loans or discounts.
VIII. The shares of the capital stock of said corporation, shall
be assignable and transferable at any time, according to such rules
as shall be established in that behalf, by the laws and ordinances of the
same; but no stock shall be transferred, the holder thereof being-
indebted to the bank, until such debt be satisfied, except the president
and directors shall otherwise order it.
IX. The bills obligatory and of credit, under the seal of the said
corporation, which shall be made payable to any person or persons, shall
be assignable by an endorsement thereupon, shall possess the like quali-
ties as to negotiability ; and the holders thereof, shall have and main-
tain the like actions thereon, as if such bills obligatory and of credit
had been made by, or on behalf of a natural person ; and all bills or
notes which may be issued b}T order of the said corporation, signed by
the president and countersigned by the principal cashier or treasurer
thereof, promising the payment of mone}' to any person or persons,
his, her or their order or to bearer, though not under the seal of the
said corporation, shall be binding and obligatory upon the same in
like manner, and with like force and effect, as upon any person or per-
sons if issued by him, her or them, in his, her or their private or
natural capacity or capacities ; and shall be assignable or negotiable
in the like manner, as if they were so issued by such private person
or persons, that is to say, those which shall be payable to any person
or persons, his, her, or their order, shall be assignable by endorsement
in like manner, and with like effect, as bills of exchange now are ; and
those which are payable to bearer, shall be assignable and negotiable
by deliveiy only.
X. Half yearly dividends shall be made of so much of the
profits of the bank, as shall be deemed expedient and proper; and
once in every three years the directors shall lay before the stock-
holders at a general meeting, an exact and particular statement of the
debts which shall have remained unpaid after the expiration of the
original credit, for a period of treble the time of that credit, and the
surplus or profit, if any, after deducting losses and dividends ; if there
shall be a failure in the payment of aii}r part of any sums subscribed
laws of 1817—1818 339
to the capital of said bank, the party failing shall loose the dividend
which may have accrued prior to the time of making such payments
during the delay of the same.
Sec. 8. And be it further enacted, That the said corporation shall
not at any time suspend or refuse payment in goM or silver, of any
of its notes, bills or obligations, nor of any monies received on deposit
in said bank : and if the said corporation shall at any time refuse or
neglect to pay on demand, any bill, note or obligation, issued by the
corporation according to the contract, promise or undertaking therein
expressed ; or shall neglect or refuse to pay on demand any monies
received in said bank, or in its office aforesaid on deposit, to the person
or persons entitled to receive the same ; then and in every such a case,
the holder of any such note, bill or obligation, or the person or peasons
entitled to demand and receive the same, shall receive interest on the
said bills, notes, obligations or monies, until the same shall be fully
paid and satisfied, at the rate of twelve per cent, per annum, from
the time of such demand as aforesaid: Provided, that the legislature
of this territory may at any time hereafter, enact laws to enforce and
regulate the recovery of the amount of the notes, bills, obligation or
other debts, of which payment shall have been refused as aforesaid,
with the rate of interest above mentioned, vesting jurisdiction for that
purpose in any court, either in law or equity, within this territory.
Sec. 9. Be it further enacted, That Benjamin Stephenson, James
Mason, John M'Kee, Joseph Conway and Abraham Prickett, or any
three of them, shall be commissioners for the purpose of receiving
subscriptions, who shall have power to appoint a person to receive
the money required to be paid at the time of subscribing ; and the
said receiver shall as soon as the directors are appointed, pay over the
same into the hands of such person or persons, as the directors may
direct.
Sec. 10. Be it further enacted, That the aforesaid corporation
shall not be dissolved previous to the expiration of their charter, nor
until their debts, contracts, notes, bills of exchange or undertaking in
their corporate capacity, shall be finally and faithfully settled : Pro-
vided also, that after the expiration of their charter, they shall not
transact business according to the true intent and meaning of this act,
further than to settle and close their contracts as above provided.
340 ILLINOIS HISTORICAL COLLECTIONS
This act to take effect and be in force from and after its passage
thereof.
George Fisher,
Speaker of the House of Representatives.
Pierre Menard,
President of the Legislative Council.
Approved — January 9, 1818,
Ninian Edwards.
An Act to incorporate the City and Bank of Cairo.
WHEREAS, John G. Comyges, Thomas H. Harris, Thomas F.
Herbert, Charles Slacle, Shadrach Bond, Michael Jones, Warren
Brown, Edward Humphreys and Charles W. Hunter, have become
proprietors by purchase from the United States, of all that certain
tract of land, situate between the Ohio and Mississippi rivers, and
near the junction of the same ; and which said tract of land is par-
ticularly known and distinguished upon a map or chart of that district
of the territory of Illinois, in which the same is comprised as follows,
viz. : South fractional half of section number fourteen, south frac-
tional half of section number fifteen, fractional section number twenty-
two, twenty-three and twenty-four, north fractional half of section
number twenty-five, north half of section number twenty-six, and the
north east fractional quarter of section number twenty-seven, in
township number seventeen, south of range one west, and containing
in the whole eighteen hundred acres or there abouts. And Whereas,
the said proprietors, represent that there is in their opinion, no
position in the whole extent of these western states better calculated
as it respects commercial advantages and local supply, for a great and
important city, than that afforded by the junction of those two great
highways the Mississippi and Ohio rivers. But that nature having de-
nied to the extreme point formed by their union, a sufficient degree of
elevation to protect the improvements made thereon from the ordinary
inundations of the adjacent waters, such elevation is to be found only
upon the tract above mentioned and described, so that improvements
and property made and located thereon, may be deemed perfectly and
absolutely secure from all such ordinary inundations, and liable to
injury only from the concurrence of unusually high and simultaneous
inundations in both of said rivers, an event which is alleged but
rarely to happen, and the injurious consequences of which it is con-
laws of 1817—1818 341
siderecl practicable by proper embankments, wholly and effectually
and permanently to obviate. And whereas, there is no doubt but that
a city erected at or as near as is practicable to the junction of the
Ohio and Mississippi rivers, provided it be thus secured by sufficient
embankments, or in such other way as experience may prove most
efficacious for that purpose, from every such extraordinary inundation,
must necessarily become a place of vast consequence to the prosperity
of this growing territory, and in fact to that of the greater part of the
inhabitants of these western states. And whereas, the above named
proprietors are desirous of erecting such city, under the sanction and
patronage of the legislature of this territory, and also of providing
by law for the security and prosperity of the same ; and to that end
propose to appropriate the one third part of all monies arising from
the sale and disposition of the lots into which the same may be sur-
veyed, as a fund for the construction and preservation of such dykes
levees, and other embankments as may be necessary to render the
same perfectly secure ; and also if such fund shall be deemed sufficient
thereto, for the erection of public edifices, and such other improve-
ments in the said city, as may be from time to time considered expe-
dient and practicable, and to appropriate the other two third parts
of the said purchase monies to the operation of banking. And where-
as, it is considered that an act to incorporate the said proprietors
and their associates, to-wit : All such persons as shall by purchase or
otherwise hereafter become proprietors of the tract above mentioned
and described, as a body corporate and politic, while it guarantees
to all those who may become free-holders or residents within the said
city, the fullest security as to their habitations and property, will at
the same time concentrate the views and facilitate the operations of
the said proprietors and their said associates, in rendering the said
city secure from all such inundations as aforesaid, and in promoting
the internal prosperity of the same : Therefore,
Be it enacted by the Legislative Council and House of Represen-
tatives of the Illinois territory, and it is hereby enacted by the author-
ity of the same, That the said John G. Comyges, Thomas H. Harris,
Thomas F. Herbert, Charles Slade, Shadrach Bond, Michael Jones,
Warren Brown, Edward Humphreys and Charles W. Hunter, pro-
prietors as aforesaid of the said tract of land above mentioned, and all
such persons as may hereafter become proprietors by purchase or
otherwise, of any portion of the same, being at the same time stock
342 ILLINOIS HISTORICAL COLLECTIONS
holders in the bank, hereinafter to be provided for; and also all such
persons as may become stock holders in said bank, without being-
proprietors of any of said lots, be and they are hereby ordained, con-
stituted and appointed a body corporate and politic, in fact and in
name, of the "President, Directors and Company of the Bank of
Cairo;" and by that name they and their associates, proprietors and
stock-holdors as aforesaid, may for thirty years hereafter have succes-
sion, and shall be persons in law capable of suing and being sued,
pleading and being impleaded, answering and being answered unto,
and defending and being defended in all courts and places whatsoever,
in all manner of actions, complaints and causes whatsoever, and that
they and their successors, proprietors as aforesaid, ma}^ have a com-
mon seal, and may alter and change the same at their pleasure.
Sec. 2. And be it further enacted, That the said John G. Comyges
and his said associates, and his and their heirs and assigns, proprietors
as aforesaid, shall within the space of nine months from the passing
of this act, proceed to lay off at the expense of said proprietors, upon
such site in said tract as may be deemed most eligible therefor, a city
to be known and distinguished by the name of Cairo ; which city shall
consist of not less than two thousand lots, each lot being not less than
sixty-six feet wide, and one hundred and twenty feet deep, and the
streets of said city to be not less than eighty feet wide, and to run as
near as may be at right angles to each other.
Sec. 3. And be it further enacted, That the price of the said lots,
into which the said site shall be so laid off as aforesaid, shall be fixed
and limited at one hundred and fifty dollars each, and the monies
arising from the sale and disposition thereof, shall be appropriated
as follows, to-wit : two third parts thereof, that is to say, the sum of
one hundred dollars on each and every lot shall constitute the capital
stock of said bank, which capital stock shall be divided into twice as
many shares as there are lots, the one half of which shares shall belong
to the purchasers of said lots, in the proportion of one share to each
lot, and the remaining, half of the said shares shall be the property
of the said John G. Comyges, and his associates aforesaid, their heirs
and assigns, proprietors as aforesaid, in proportion to the interest
which they may respectively hold in the same ; the remaining one third
part of the purchase money of said lots to constitute a fund to be ex-
clusively appropriated to the security and improvement of said city,
in manner as is hereinafter more particularly directed.
laws of 1817—1818 343
Sec. 4. And be it further enacted, That it shall be lawful for the
said John G. Comyges, and his said associates, his and their heirs and
assigns, proprietors as aforesaid, to nominate and appoint by them-
selves or by their attornies thereto lawfully authorised, so many com-
missioners as they may deem necessary, for the purpose of receiving
subscriptions for the purchase of the said lots upon the terms herein
above stated; and it shall be the duty of such commissioners to ad-
vertise for sale so many of said lots as they shall be respectively author-
ised to sell, and to receive subscriptions for the same.
Sec. 5. And be it further enacted, That it shall be the duty of
the said commissioners, upon any person applying to make such sub-
scription to direct the person so applying to make a deposite to the
credit of the bank of Cairo aforesaid, in the bank of the United States,
or such branch thereof as there may be in the place where such com-
missioner shall reside ; and in case there should be no such bank in
said place, then in such chartered bank as may be most convenient,
of one third of the purchase money of the lot or lots so applied for ;
and said applicant, upon producing to said commissioner the proper
certificate of such deposite, shall thereupon and not otherwise, be
deemed a subscriber for the same ; and it shall be the duty of such
subscriber to make the further deposite in the same bank and to the
same credit, of the sum of one other third part of the said purchase
money at the expiration of three months ; and of the remaining one
third part at the expiration of six months, from the time of such sub-
scription, said deposites to be punctually made, under the penalty of
forfeiting the deposite, or deposites thereto previously made.
Sec. 6. And be it further enacted, That no subscription shall be
received from any person for more than ten of said lots.
Sec. 7. And be it further enacted, That as soon as five hundred
lots shall have been subscribed for, a meeting to be held at Kaskaskia,
shall be called by public notice to that effect, and which notice shall
be given in not less than five of the newspapers printed in the United
States, at least two months previous to the- day of holding such meet-
ing of all such subscribers for the purpose of electing thirteen di-
rectors, all of whom shall be subscribers as aforesaid, and stock-holders
in said bank, and citizens of this territory, and who shall hold their
offices for one year, from the time of such election, or until a new elec-
tion shall be had and the said election shall be held and made by
such of the stock-holders of said bank, as shall attend for that
344 ILLINOIS HISTORICAL COLLECTIONS
purpose, either in person or by proxy, which proxies shall always
be stock-holders, and all elections shall be by ballot, each
share entitling its owner to a vote ; and the thirteen persons
who shall have the greatest number of votes shall be direc-
tors ; and the said directors as soon as may be thereafter, shall pro-
ceed in like manner by ballot to elect one of their number to be their
president ; and whenever any vacancy shall happen among the direc-
tors, by death, resignation or removal, such vacancy shall be filled for
the remainder of the year in which it shall happen by such person or
persons, as the rest of the directors or a majority of them may
appoint.
Sec. 8. And be it further enacted, That a new election shall be
had annually thereafter, at such time and place as a majority of the
directors for the time being, (which majority shall always constitute
a board for the transaction of business) shall appoint.
Sec. 9. And be it further enacted, That the directors for the time
being, or the major part of them shall have power to make and pre-
scribe such bye-laws, rules and regulations as to them shall appear
needful and proper, touching the management and disposition of the
stock, property, estate and effects of the said corporation ; the duties
and conduct of the officers, clerks and servants employed therein ;
the election of directors, and of all such other matters as appertain
to the business of a bank ; and shall have power to appoint so many
officers, clerks and servants for carrying on the said business, and
with such salaries and allowances as to them shall seem meet: Provided,
that such bye-laws, rules and regulations be not repugnant to the
constitution and laws of the United States, nor of this territory.
Sec. 10. And be it further enacted, That the said bank shall be
established and kept, and the business thereof at all times after the
organization of the same, shall be transacted at such place within
the town of Kaskaskia, as the president and directors may deem
proper.
Sec. 11. And be it further enacted, That it shall be the duty of
such president and directors as soon after their election as may be
to proceed to distribute among the said subscribers so many lots as
shall have been subscribed for, which distribution shall be by lottery.
Sec. 12. And be it further enacted, That as soon as such dis-
tribution shall have been made, it shall be the duty of the said presi-
dent and directors, upon the receipt by them of the certificates for the
laws of 1817—1818 345
deposite of the whole of the purchase money as above mentioned, to
make and execute in the name of the president, directors and company
of the said bank of Cairo, to each and every such subscriber a good
and sufficient deed of conveyance, with the usual covenants for such
lot or lots as in said distribution may have fallen to the share of such
subscriber, which deed shall be an absolute conveyance in fee simple
to the said subscriber of all the right, title and interest of the present
proprietors, their heirs and assigns in the same.
Sec. 13. And be it further enacted, That it shall be the duty of
the said president and directors, to demand and receive of and from
the cashiers of every bank, in which the deposites above mentioned
shall have been made, the whole amount of monies so deposited, and
thereupon and not before to commence their operations as a banking
company.
Sec. 14. And be it further enacted, That the total amount of debts
which the said corporation shall at any time owe whether by bond,
bill, note or other contract, over and above the specie then actually
deposited in the said bank, shall not exceed twice the amount of the
capital stock actually paid into said bank. And in case of excess,
in this respect the directors under whose administration such excess
shall happen, shall be liable for the same in their separate and priv-
ate capacities; but this shall not be construed to exempt the said
corporation, or any estate real or personal which they may hold as a
body corporate, from being also liable for and chargeable with such
excess; but such of the directors who may have been absent when the
said excess was contracted, or who may have dissented from the reso-
lution, or act whereby the same was so contracted, shall not be so liable.
Sec. 15. And be it further enacted, That the lands, tenements
and hereditaments, which it shall be lawful for the said corporation
to hold, shall be such only as shall be requisite for its immediate ac-
commodation in relation to the convenient transaction of its business,
or such as shall have been bona fide mortgaged to it by way of security,
or conveyed to it in satisfaction of debts previously contracted in the
course of its dealings, or purchased at sales upon judgments which
shall have been obtained upon such debts.
Sec. 16. Be it further enacted, That the bills obligatory and of
credit, under the seal of the said corporation, which shall be made to
any person or persons, shall be assignable by endorsement thereupon,
under the hand or hands of such person or persons, his, her or their
346 ILLINOIS HISTORICAL COLLECTIONS
assignee or assignees, and so as absolutely to transfer and vest the
property thereof, in each or every assignee or assignees respectively,
and to enable such assignee or assignees to bring or maintain an action
thereupon, in his, her or their own name or names ; and bills or notes,
which may be issued by order of the said corporation, promising the
payment of money to any person or persons, his, her or their order,
or to bearer, though not under the seal of the said corporation, shall
be binding and obligatory upon the same in like manner and with the
like force and effect, as upon any private person or persons if issued
by him, her or them, in his, her or their private or natural capacity
or capacities, and shall be assignable and negotiable in like manner,
as if they were so issued by such private person, or persons.
. Sec. 17. And be it further enacted, That it shall be the duty
of the directors to make half yearly dividends of so much of the profits
of the said bank, as to them or a majority of them shall seem advisable.
And that every cashier and clerk, before he enters upon the duties
of his office, shall give bond with two or more securities, to be ap-
proved by the directors for the time being, or a majority of them, in
a sum not less than ten thousand dollars for such cashier, and two
thousand dollars for such clerk, conditioned for the faithful discharge
of their several duties.
Sec. 18. And be it further enacted, That the said corporation
shall not demand or receive any greater interest, on any loan or dis-
count, than at the rate of six per cent, per annum.
Sec. 19. And be it further enacted, That it shall be the duty of
the said directors, immediately after their said election, to appoint
out of their own body, a committee consisting of three of their mem-
bers, who shall have the charge and management of that portion of
the said purchase monies above set apart, and appropriated as a fund
for the security and improvement of said city; and which fund or
such portion thereof, as the said committee shall deem proper and
advisable, shall be invested in stock of the said bank ; the said directors
being hereby authorised and required to add to their capital stock so
many shares as shall be sufficient to take in the same, at the par value
of said stock.
Sec. 20. And be it further enacted, That it shall also be the duty
of the said directors immediately after their said election, to nomi-
nate and appoint three persons, not of their own body, but who shall
be removeable at the pleasure of the said directors, and who shall
laws or 1817—1818 347
always be citizens of this territory, and residents, if competent and
judicious persons, in the opinion of the said bank directors, can there
)>e had, of the said city of Cairo, and who shall be styled ' ' The board of
security and improvement of the city of Cairo ; ' ' which board or a
majority thereof, shall under the sanction of the directors of the said
bank thereto first had and obtained, direct and superintend the con-
struction and preservation of such dikes, levees and embankments,
as may be necessary for the security of the said city of Cairo, and every
part thereof, from all and every inundation which can possibly affect
or injure the same ; and the erection from time to time of such public
works and improvements as the state of such fund will justify. And
for the payment of such expenses as may be necessarily incurred
therein, the said board is hereby authorised to draw upon the said
committee ; and who are hereby also directed and required to pay and
disburse, the same ; which drafts and payments shall always be made
in such form and manner as the said bank directors, or a majority of
them, may prescribe.
Sec. 21. And be it further enacted, That the said directors may
increase the amount of their capital stock, as in their discretion they
may see fit, by subscriptions to be had and obtained in the usual man-
ner of obtaining such subscriptions, at the rate of fifty dollars per
share : Provided however, that the capital stock of said bank, shall
never exceed the sum of five hundred thousand dollars.
Sec. 22. The legislature of the said territory or state which may
be erected out of the territory, may at any time compel the said pro-
prietors of the town of Cairo, and those interested therein, to do all
the business relative to the bank, at the said town of Cairo, and not
elsewhere.
Sec. 23. Be it further enacted, That the said corporation shall
not at any time suspend or refuse payment in gold and silver, of any
of its notes, bills or obligations, nor of any monies received upon
deposite in said bank, or in its office of discount and deposite ; and if
the said corporation shall at any time refuse or neglect to pay on
demand, any bill, note or obligation, issued by the corporation, accord-
ing to the contract, promising or undertaking therein expressed ; or
shall neglect or refuse to pay on demand any monies received in said
bank, or in its office aforesaid, deposite to the person or persons en-
titled to receive the same ; then and in every such case, the. holder of
any such note, bill or obligation, or the person or persons entitled to
348 ILLINOIS HISTORICAL COLLECTIONS
demand and receive the same, shall recover interest on the said bills,
notes, obligations or monies, until the same shall be fully paid and
satisfied, at the rate of twelve per centum per annum, from the time
of such demand as aforesaid.
Sec. 24. And be it further enacted, That this act be, and is
declared to be a public act, and that the same be construed in all courts
and places benignly and favorably, for every beneficial purpose
therein mentioned.
George Fisher,
Speaker of the House of Representatives.
Pierre Menard,
President of the Legislative Council.
Approved — January 9, 1818,
Ninian Edwards.
An Act to incorporate the President, Directors and Company of the
Bank of Kaskaskia.
Be it enacted by the Legislative Council and House of Representa-
tives of the Illinois territory, and it is hereby enacted by the authority
of the same, That a bank shall be established at Kaskaskia, the capital
stock whereof, shall not exceed three hundred thousand dollars, to
be divided into shares of one hundred dollars each. And that sub-
scriptions for constituting the said stock, shall on the first day of Feb-
ruary next, be opened at Kaskaskia, Edwardsville, Belleville, Carmi,
Palmyra, Shawnoetown and Elvira, under the superintendance of
such persons, as shall be hereafter mentioned ; which subecriptions
shall be continued open until the whole capital stock shall have been
subscribed for: Provided however, that so soon as there shall be fifty
thousand dollars subscribed for in the whole, and ten thousand dol-
lars actually paid in, the said corporation may commence business and
issue their notes accordingly.
Sec. 2. Be it further enacted, That it shall be lawful for any
person, or copartnership, body politic, to subscribe for such or so many
shares, as he, she or they may think fit : Provided however, that not
more than twenty shares shall be subscribed for in any one day, by
any one person, body politic, or copartnership, for the first ten days
after opening said subscriptions. The payments of the said subscrip-
tions shall be made by the subscribers respectively, at the times and in
the manner following, that is to say, at the time of subscribing there
laws of 1817—1818 349
shall be paid into the hands of the persons appointed to receive the
same, the sum of ten dollars, in gold or silver, on each share subscribed
for; and the residue of the stock shall be paid at such times, and in
such intalments as the directors may order : Provided, that no in-
instalment shall exceed twentj^-five per cent, on the stock subscribed
for, and that at least sixty days notice be given in one or more public
newspapers, printed in this Territory : And provided also, that if any
subscriber shall fail to make the second payment at the time appointed
by the directors for such payment to be made, he, she or they shall
forfeit the sum so by him, her or them first paid, to and for the use
of the corporation.
Sec. 3. Be it further enacted, That all those who shall become
subscribers to the said bank, their successors and assigns, shall be, and
they are hereby enacted and made a corporation and body politic, by
the name and style of the "President, Directors and Company of the
Bank of Kaskaskia, ' ' and shall continue until the first day of January,
one thousand eight hundred and thirty eight ; and by that name shall
be, and hereby are made, able and capable in law, to have, purchase,
receive, possess, enjoy and retain to them, and their successors, lands,
rents, tenements, hereditaments, goods, chattels and effects of what
kind, nature or quality soever, to an amount not exceeding in the
whole, eight hundred thousand dollars, including the capital stock
aforesaid ; and the same to grant, demise, alien or dispose of , to sue
and be sued, plead and be impleaded, answer and be answered, defend
and be defended, in courts of record, or any other place whatsover ;
and also to make, have and use a common seal, and the same to break,
alter, and renew at pleasure ; and also to ordain, establish and put
in excecution, such bye laws, ordinances and regulations, as they shall
deem necessary and convenient for the government of the said corpo-
ration, not inconsistent with the laws of the Territory, or constitution ;
and generally to do and perform, and execute all and singular matters
and things, which to them it shall or may appertain to do, subject
however, to the rules, regulations, limitations and provisions, herein-
after prescribed and declared.
Sec. 4. Be it further enacted, That for the well ordering of the
affairs of the said corporation, there shall be twelve Directors, the first
election for whom, shall be by the stock holders, by a plurality of votes
actually given on such day, as the persons appointed to superintend
the subscriptions for stock shall appoint, by giving at least thirty days
350 ILLINOIS HISTORICAL COLLECTION'S
previous notice in all the public newspapers printed in this Territory ;
and those who shall be duly chosen at any election, shall be capable
of serving as Directors by virtue of such choice until the full end and
expiration of one year, after the expiration of one year after the first
Monday in January next, ensuing the time of such election, and no
longer. And on the said Monday in January, in each and every year
thereafter, the election for Directors shall be holden, and the said
Directors, at the first meeting after each election, shall choose one of
their number as president.
Sec. 5. Be it further enacted, That in case it should happen at
any time, that an election for directors should not be holden upon any
day, when pursuant to this act, it ought to have been holden, the corpo-
ration for that cause, shall not be considered as dissolved, but it shall
be lawful to hold an election for directors on any other day, agreeable
to such bye-laws and regulations as may be made for the government
of the said corporation ; and in such case the directors for the time
being, shall continue to exercise and discharge the several duties
of directors, until such election is duly had and made, any thing in the
fourth section to the contrary notwithstanding: And it is further
provided, that in case of death, resignation or removal from office
of any director or directors, the vacancy shall be filled by election for
the balance of the year.
Sec. 6. Be it further enacted, That a majority of the directors
for the time being, shall have power to appoint such officers, clerks and
servants under them, as shall be necessary for executing the business
of said corporation, and to allow them such compensation for their
services respectively as shall be reasonable ; and shall be capable of
exercising such other powers and authorities for the well governing
and ordering of the affairs of the said corporation as shall be pre-
scribed, fixed and determined by the laws, ordinances and regulations
of the same.
Sec. 7. Be it further enacted, That the following rules, restric-
tions, limitations and provisions, shall form and be the fundamental
articles of the constitution of the said corporation, to-wit : The num-
ber of votes to which the stock-holders shall be entitled in voting for
directors, shall be according to the number of shares he, she or they,
respectively hold, in the proportions following, that is to say, for one
share and not more than two shares, one vote ; for every two shares
above two, and not exceeding ten, one vote ; for every four shares above
laws of 1817—1818 351
ten and not exceeding thirty, one vote ; for every six shares above
thirty, and not exceeding sixty, one vote ; for every eight shares above
sixty, and not exceeding one hundred, one vote ; for every ten shares
above one hundred, one vote; and after the first election, no share or
shares shall confer a right of voting which shall not have been holden
three calendar months, previous to the day of election.
II. None but a bona fide stock-holder, being a resident citizen
of the territory, shall be a director ; nor shall a director be entitled to
any other emolument than such as shall be allowed by the stock-holders
at a general meeting; but the directors may make such compensation
to the president for his extraordinary attendance at the bank, as shall
appear to them reasonable and just.
III. Not less than four directors shall constitute a board for the
transaction of business, of whom the prescient shall always be one,
except in cases of sickness or necessary absence ; in which case his
place may be supplied by any other director, whom he by writing,
under his hand, may depute for that purpose.
IV. Any number of stock-holders, not less than fifteen, who
shall be proprietors of not less than fifty shares, shall have power to
call a general meeting of the stock-holders, for purposes relative to the
institution, by giving at least thirty days notice in one or more of the
public newspapers of the territory, specifying in such notice the ob-
ject or objects of meeting; and may moreover appoint three of their
members as a committee, to examine into the state and condition of
the bank, and the manner in which its affairs have been conducted :
Provided, that no member of such committee, shall be director, presi-
dent or other officer of any other bank.
V. Every Cashier before he enters upon the duties of his office,
shall be required to give bond with sureties, to the satisfaction of the
directors, in a sum not less than ten thousand dollars, conditioned for
his good behaviour, and the faithful performance of his duties to the
said corporation ; and the other officers and servants shall also enter
into bond and security in such sum as the president and directors may
prescribe.
VI. The lands, tenements and hereditaments, which it shall be
lawful for the said corporation to hold, shall be only such as shall be
requisite for its immediate accommodation, in relation to the conven-
ient transaction of its business ; and such as shall have been bona fide
mortgaged to it by way of security, or conveyed to it in satisfaction of
352 ILLINOIS HISTORICAL COLLECTION'S
debts, previously contracted in the course of its dealings, or purchased
upon judgments, which shall have been obtained for such debts.
VII. The total amount of debts, which the said corporation shall
at any time owe by bond, bill, note or other contract, shall not exceed
twice the amount of their capital stock actually paid over and above
the monies then actually deposited in the bank for safe keeping ; and
in case of excess, the directors under whose administration it shall
happen, shall be liable for the same, in their natural and private capa-
cities ; and an action of debt may be brought against them, or any of
them, their or any of their heirs, executors or administrators, in any
court competent to try the same, or either of them, by any creditor
or creditors, of the said corporation ; but this provision shall not be
construed to exempt the said corporation, or the lands, tenements,
goods or chattels of the same, from being liable for, and chargeable
with the said excess. — Such of the said directors who may have been
absent when the said excess was contracted or created, or who may
have dissented from the resolution, or act whereby it was contracted
or created, may respectively exonerate themselves from being so liable
by forthwith giving notice of the fact, or of their absence or dissent,
at a general meeting of the stock-holders, which they shall have power
to call for that purpose.
VIII. The said corporation shall not directly or indirect^, deal
or trade in any thing, except bills of exchange, gold or silver, or in the
sale of goods, really and truly pledged for money lent and not legally
redeemed in due time ; or of goods, which shall be the produce of its
lands; neither shall the said corporation take more than at the rate
of six per cent, per annum, for or upon its loans or discounts.
IX. The shares of the capital stock of said corporation, shall be
assignable and transferable, at any time according to such rules and
regulations as shall be established in that behalf, by the laws and
ordinances of the same ; but no stock shall be transf ered, the holder
thereof, being indebted to the bank, until such debts are satisfied,
except the president and directors shall otherwise order it.
X. The bills obligatory and of credit, under the seal of the said
corporation, which shall be made payable to any person or persons, shall
be assignable by an endorsement thereupon ; shall possess the like quali-
ties as to negotiability ; and the holders thereof shall have and main-
tain the like actions thereon, as if such bills obligatory, and of credit
had been made by or on behalf of a natural person ; and all bills or
laws of 1817—1818 353
notes which may be issued by order of the said corporation, signed
by the president and countersigned by the principal cashier or treas-
urer thereof, promising the payment of money to any person or per-
sons, his, her or their order, or to bearer, though not under the seal
of the said corporation, shall be binding and obligatory upon the same,
in like manner and with like force and effect as upon any private
person or persons, if issued by him, her or them, in his, her or their
private capacity or capacities ; and shall be assignable and negotiable
in the like manner, as if they were so issued, by such private person
or persons, that is to say, those which shall be payable to any person
or persons, his, her or their order, shall be assignable by endorsement
in like manner and with like effect as bills of exchange now are ;
and those which are payable to bearer, shall be assignable and nego-
tiable by delivery only.
XI. Half yearly dividends, shall be made of so much of the
profits of the bank, as shall be deemed expedient and proper ; and once
in three years the directors shall lay before the stock-holders, at a
general meeting, an exact and particular statement of the debts which
shall have remained unpaid, after the expiration of the original credit,
for a period of treble the time of that credit, and the surplus of profit,
if any, after deducting losses and dividends. If there shall be a fail-
ure, in the payment of any part of any sums subscribed to the capital
of said bank, the party failing shall loose the dividend which may have
accrued, prior to the time of making such payment, during the delay
of the same.
Sec. 8. Be it further enacted, That the said corporation shall not
at any time suspend or refuse payment in gold and silver, of any of its
notes, bills or obligations, nor of any monies received upon deposite in
said bank, or in its office of discount and deposite ; and if the said
corporation shall at any time refuse or neglect to pay on demand,
any bill, note or obligation, issued by the corporation according to
the contract, promise or undertaking therein expressed, or shall neg-
lect or refuse to pay on demand any monies received in said bank, or
in its office aforesaid on deposite to the person or persons entitled to
receive the same ; then and in every such case the holder of any such
note, bill or obligation, or the person or persons entitled to receive the
same, shall recover interest on the said bills, obligations, or monies,
until the same shall be fully paid and satisfied, at the rate of twelve
per centum per annum from the time of such demand as aforesaid.
354 ILLINOIS HISTORICAL COLLECTIONS
Sec. 9. Be it further enacted, That the following persons, to-wit :
Pierre Menard, William Morrison, senr. Shadraeh Bond, William C.
Greenup and Hugh H. Maxwell, at Kaskaskia ; Benjamin Stephenson,
James Mason, Abraham Prickett, John M'Kee and Joseph Conway, at
Edwardsville ; R. K. M'Laughlin, William Mears, William Kinney,
John Messenger, and Doctor Heath, at Belleville ; Daniel Hay, James
Graham, James Ratliffe, James Gray, and John Kraw, at Carmi ;
Thomas Sloo, Joseph M. Street, M. S. Davenport, James Wilson, and
John Caldwell, at Shawnoetown ; Doctor Woolverton, G. W. Smith,
Samuel Marshall, Jesse B. Brown, and Seth Gard, at Palymra ; James
Finny, Erwin Morris, Owen Evans, George Evans, and Jacob Little-
ton, at Elvira ; or any three of them at each place, shall be commission-
ers for the purpose of receiving subscriptions, and who shall have
power to appoint a person to receive the money, required to be
paid at the time of subscribing : and the said receiver, shall as soon as
the directors are appointed, pay over the same into the hands of such
person as the directors may direct.
Sec. 10. Be it further enacted, That the said corporation shall
not be dissolved, until their debts, contracts, notes, bills of exchange
and undertakings, in their corporate capacity shall be finally and
faithfully settled : Provided also, that after the expiration of their
charter, they shall not transact business, according to the true intent
and meaning of this act, further than to settle and close their con-
tracts, as above provided ; and that the territory or state which may
be formed out of the same, shall have the right of subscribing for one
third of the capital stock of the said bank of Kaskaskia ; and the said
third part shall be subject to such regulation as the stock of individ-
uals is subject to ; and to such other regulations as the legislature may
from time to time make and ordain, touching the same.
This act to take effect from and after the passage thereof.
George Fisher,
Speaker of the House of Representatives.
Pierre Menard,
President of the Legislative Council.
Approved — January 9, 1818,
Ninian Edwards.
laws of 1817—1818 355
An Act establishing Circuit Courts and Justices' Courts,
and for other purposes.
Be it enacted by the Legislative Council and House of Represen-
tatives of the Illinois territory, and it is hereby enacted by the author-
ity of the same, That there shall be, and there is hereby established in
each and every county now established, or which may hereafter be
established in this territory, a Court to be styled "the Justices'
Court," which shall be composed of the justices of the peace of the
respective counties, any three of whom shall constitute a court, or
quorum to do business.
Sec. 2. Be it further enacted, That the said courts shall respec-
tively hold three terms annually, at the place appointed for holding-
courts in their respective counties, as follows, to-wit : In the counties
of Crawford and Madison, on the first Mondays of April, August and
December; in the counties of St. Clair and Franklin, on the second
Mondays of April, August and December; in the counties of Monroe
and Pope, on the third Mondays of April, August and December; in
the counties of Randolph and Union, on the first Mondays of March,
July and November; in the counties of Jackson and Washington, on
the second Monday of March, Ju1jt and November ; in the counties of
Johnson and Bond, on the third Mondays of March, July and Novem-
ber ; in the counties of Gallatin, White and Edwards, on the fourth
Mondays of March, July and November.
Sec. 3. Be it further enacted, That there shall be appointed and
commissioned by the governor, some competent person in each county,
who shall be clerk of the justices' court of the county in which he shall
be appointed, who shall hold his office at the place where such county
court may be held ; and the said clerk shall give bond with one or
more sureties to be approved of by the court of which he is clerk, to
the governor for the time being and his successors in office, in the sum
of five hundred dollars, and take an oath faithfully to discharge the
duties of his office, and seasonable to record the decrees, judgments
and orders of the court of which he is clerk • and to do and perform
all other duties required, or which shall be required of him by law ;
and deliver all the records and other writings belonging to his said
office, whole, safe and undef aced, to his successor in office, which oath
shall be endorsed on the back of said bond, and filed in the office of
the secretary of the territory; provided, that no person holding the
356 ILLINOIS HISTORICAL COLLECTIONS
office of justice of the peace shall be appointed clerk of any justices'
court.
Sec. 4. Be it further enacted, That the said justices' courts
shall have the same powers, and possess the same jurisdiction, which
the county courts now possess and exercise in all cases relating to
public roads and highways, in cases relating to the county taxes, in all
cases relating to elections, and all other cases relating to the concerns
of the county.
Sec. 5. And be it further enacted, That this territory shall be
divided into two circuits, for each of which there shall be appointed
and commissioned by the governor, one person learned in the law, who
shall have resided in the territory at least one year previous to his
appointment as circuit judge, with a salary of one thousand dollars,
to be paid quarter yearly out of the territorial treasury ; who previous
to entering on the duties of his office, shall take an oath to support
the constitution of the United States, and an oath of office according
to law. The said circuit judge shall hold three terms annually of the
said circuit court, in each and every county within his district, and
shall have jurisdiction over all causes, matters and things, arising
at common law or in chancery, in the respective counties, except in
cases where the debt or demand shall be under twenty dollars, in which
case he shall have no original jurisdiction ; and the said circuit judges,
in their circuits respectively, shall have and exercise all and every o£
the powers, authority and jurisdiction which were or might have been
had and exercised by the United States' judges, appointed for this ter-
ritory in their circuits respectively, previous to the passage of this law ;
and the circuit courts established by this act, shall have and exercise all
the powers and jurisdiction, which previous to the passage of this act,
were or might have been exercised by the circuit courts heretofore
existing; and the circuit courts in the respective counties, shall do
and perform all the duties, and exercise all the jurisdiction heretofore
done, performed and exercised by the county courts, except in such
cases, the jurisdiction whereof is by this law given to the justices'
courts.
Sec. 6. Be it further enacted, That the circuits established by
this act, shall be called the Eastern and Western Circuits, and shall
be formed as follows, to-wit : the counties of Crawford, Edwards,
White, Gallatin, Pope, Johnson and Franklin, shall compose the east-
ern circuit : The counties of Bond, Madison, St. Clair, Washington,
laws or 1817—1818 357
Monroe, Randolph, Jackson and Union, shall compose the western
circuit ; and the said courts hereby established shall be holden at the
following times and places, to-wit : in the counties of Bond and
Crawford on the first Mondays of March, July and November; in the
counties of Washington and Edwards, on the second Mondays of
March, July and November ; in the counties of Madison and White,
on the third Mondays of March, July and November; in the counties
of St. Clair and Gallatin, on the fourth Mondays of March, July and
November ; in the counties of Monroe and Pope, on the first Mondays
of April, August and December; in the counties of Randolph and
Franklin on the second Mondays of April, August and December ; in
the county of Jackson, on the first Mondays of May, September and
January ; in the county of Union, on the second Mondays of May,
September and January ; in the county of Johnson, on the third Mon-
days of May, September and January.
Sec. 7. Be it further enacted, That in case either of the said
circuit judges shall by death or other unavoidable absence be unable
to attend his circuit courts, or any term thereof, it shall be the duty
of the other circuit judge to attend in his place, and hold such court
or courts, and exercise the jurisdiction which the absent judge might
have legally done until the vacancy shall be filled by the governor,
where the same shall have happened by death. It shall be the duty
of the said circuit judges to reside in the circuits for which they
shall be appointed : Provided, that no person appointed under this
law a circuit judge, shall be at liberty to practice law in this terri-
tory : Provided further', that it shall be the duty of the circuit judges
appointed by virtue of this act, to go jointly into their respective
circuits. In case any person appointed under this law a circuit judge
shall have been a practising attorney in any circuit to which he has
been appointed a judge, until the causes in which such judge shall
have been concerned shall be determined and in case any judge shall
be interested in any cause in his circuit, it shall be his duty to make
out a list of such case or cases and file the same in the clerk's office
of the court where the cause may be pending; and it shall be the
duty of the clerk of the circuit court where such judge is interested, a
reasonable time before the term the cause is set for trial to give to the
other circuit judge notice thereof; and it shall be the duty of the
other circuit judge, to attend such circuit for the trial of said cause ;
and if both judges shall happen to be, or to have been interested or
358 ILLINOIS HISTORICAL COLLECTIONS
concerned in any cause or causes, they shall order and direct the same
to be certified to the general court hereinafter mentioned to be decided
on ; and it is hereby made the duty of the general court to try said
cause in the same manner that the circuit court could legally have
done.
Sec. 8. Be it further enacted, That the judges of the circuit
courts hereb}^ established, shall hold their offices during good behav-
iour, and during the countinuance of the territorial government.
Sec. 9. Be it further enacted, That there shall be appointed and
commissioned by the governor in each county a competent person as
clerk of the said circuit court, who shall give bond and security in
the same manner that the clerks of the circuit courts heretofore exist-
ing were required to do.
Sec. 10. Be it further enacted, That it shall be the duty of the
several clerks of the circuit courts and county courts heretofore exist-
ing, on the application of the clerks of the circuit courts and justices1
courts, hereby established for the respective counties to deliver up to
them respectively, the whole of the records, papers and writings, which
may appertain to their respective offices, according to the jurisdiction
of the courts of which they are clerks ; and according to the true in-
tent and meaning of this act, whole and undefaced, under the penalty
of forfeiting and paying to the use of the county, in which such per-
son shall have been clerk, the sum of one thousand dollars, to be recov-
ered by action of debt, for the use of the county ; and the clerks of
the circuit courts and the justices' courts, appointed by virtue of this
act, shall respectively receive the same fees and compensation hereto-
fore allowed the clerks of the circuit courts and county courts hereto-
fore existing for the performance of like services.
Sec. 11. Be it further enacted, That all suits, process, motions
and causes whatsoever they may be, either civil or criminal, which are
now commenced or pending in the several circuit courts and county
courts heretofore existing, shall be returnable to have day, and be
disposed of and be decided upon by the circuit courts hereby estab-
lished in the counties where such suits, process, motions and causes
may have been commenced, and are pending at the taking effect of
this act, and in all cases Avhere judgment or decrees may have been
given by the circuit courts or county courts heretofore existing, which
remain unsatisfied or unperformed, it shall be the duty of the clerks
of the circuit courts hereby established respectively to issue execu-
laws of 1817—1818 359
tions on all such judgments, or decrees, and also upon replevy bonds,
returnable in the same manner as though no change of courts had
taken place, other than a mere change of terms, and all cases which
are at issue or standing for trial in the circuit courts or county courts
heretofore existing, shall stand and come on for trial at the first term
of the courts hereby established, in the same manner that they would
have done in the respective courts in which they were pending, had
this law not been passed.
Sec. 12. Be it further enacted, That the judges appointed by the
authority of the United States, for this territory, shall constitute a
general court of Illinois territory, and the said judges of the general
court shall hold four terms of said court annually ; two to be held in
Shawnoetown, on the fourth Mondays of June and October, in each
and every year; and two to be held in Kaskaskia, on the second
Mondays of June and October, in each and every year. And the said
general court shall have appellate jurisdiction.
Sec. 13. Be it further enacted, That appeals shall be allowed
to the said general courts, and writs of error shall be allowed accord-
ing to the principles of the common law, and conformably to the laws
and usages of this territory, from the said general court ; and the said
writs of error may be prosecuted for the reversal of the judgments
and decrees of the said circuit courts, as well in criminal as other
cases : Provided however, that all appeals from the judgments or
decrees of the circuit courts for the eastern district, shall be prose-
cuted and determined in the general court to be held as aforesaid at
Shawnoetown; and all appeals from the judgments or decrees of the
circuit courts for the western district, shall be prosecuted and deter-
mined in the general court to be held as aforesaid at Kaskaskia.
Sec. 14. Be it further enacted, That there shall be two compe-
tent persons appointed by the said general court or a majority of the
judges thereof, as clerks of the said general courts, one to reside at
Shawnoetown and the other at Kaskaskia, who shall respectively give
bond with two sureties at least, to be approved of by the judges of the
general court, or a majority of them, to the governor of the territory
and his successor in office for the time being, in the sum of two thou-
sand dollars, conditioned to seasonably record all decrees, judgments
and orders of the courts of which they are clerks, and to do and per-
form all other duties required, or which shall be required of them
by law, and to deliver up the records and other writings belonging to
360 ILLINOIS HISTORICAL COLLECTIONS
their said offices respectively, whole, safe and undefaced, to his suc-
cessors in office ; and said clerks shall moreover take the same oath
that the clerks of the circuit courts are by this law required to take ;
and such oath shall be endorsed upon the back of the bond, and re-
turned to the office of the secretary of the territory.
Sec. 15. Be it further enacted, That it shall be the duty of the
clerk of the court of appeals for Illinois territory, on the application
of the clerk of the general court at Kaskaskia, to deliver up to him
the whole of the records, papers and writings which may appertain to
his office according to the true intent and meaning of this act, whole
and undefaced, under the penalty of forfeiting and paying to the
use of the territory the sum of fifteen hundred dollars, to be recov-
ered by action of debt, in the name of the governor, for the use of
the territory, before the circuit court for the county of Randolph.
Sec. 16. Be it further enacted, That in all suits and causes, which
now are, or which at the taking effect of this act, may be pending in
the court of appeals for the Illinois territory, the parties or their
attorney, shall be permitted to take all such measures for bringing
them to a final termination and decision in the general court, to be held
at Kaskaskia, that might have been taken in the said court of appeals,
had no change taken place ; and the said general court to be held as
aforesaid at Kaskaskia, shall as far as practicable, proceed to a final
determination of such causes, in the same manner that the said court
of appeals might legally have done, had no other change than a mere
alteration of the terms taken place ; and it shall be the duty of the
clerk of the general court to issue executions on all judgments and
decrees, and replevy bonds, which remain in said court of appeals
unsatisfied, returnable according to law.
Sec. 17. Be it further enacted, That appeals may be prayed and
writs of error taken out upon matters of law only, in all cases wherein
they are now allowed by law ; and all writs of error shall be issued
by the clerk of the general court, and be made returnable to the en-
suing term of the general court at Shawnoetown, provided the proceed-
ings or judgment complained of, were had or determined in the eastern
circuit ; but in case the proceedings or judgment were had or deter-
mined in the western circuit, the clerk shall make it returnable to the
next term of the general court to be held at Kaskaskia, provided
that no appeal or writ of error shall be decided without the concur-
rence of two judges at least.
laws of 1817—1818 361
Sec. 18. Be it further enacted, That the judicial term of the
circuit courts in each county shall consist of six days, during which
time the said courts shall sit, unless the business before them shall
be sooner disposed of : — Provided however, that the general court at
each term shall sit until all the business shall be disposed of.
Sec. 19. Be it further enacted, That the county courts, circuit
courts and courts of appeals, heretofore existing, shall be and the same
are hereby abolished.
This act to take effect and be in force from and after its passage.
George Fisher,
Speaker of the House of Representatives.
Pierre Menard,
President of the Legislative Council.
Approved — January 12, 1818,
Ninian Edwards.
An Act making appropriations for the yeaf eighteen hundred and
eighteen, and for other purposes.
Be it enacted by the Legislative Council and House of Represen-
tatives of the Illinois territory, and it is hereby enacted by the author-
ity of the same, That there shall be paid out of the Territorial treasury,
on the warrant of the Auditor of Public Accounts, to each member of
the Legislative Council and House of Representatives, the sum of
three dollars per day, for each day's attendance at the present session
of the legislature, and at the rate of three dollars for every twenty
miles travel to and from the seat of government to their residence, by
the most usual road. To the secretary of the Legislative Council, and
clerk of the House of Representatives, for their services at the present
session, the sum of four dollars per day, for every day's attendance at
the present session ; and the engrossing and enrolling clerk, the sum
of four dollars per day ; and to the door-keeper of both houses, three
dollars per day, for each day 's attendance at the present session.
Sec. 2. Be it further enacted, That the compensation which
may be due to the members and officers of the legislative council, shall
be certified by the secretary thereof, and the secretary's by the presi-
dent thereof. And that which may be due to the members of the house
of representatives, including the enrolling clerk and door-keeper, by
the clerk thereof, and the clerk's by the speaker thereof; which certifi-
cate shall be sufficient evidence to the Auditor of the claim, and he
362 ILLINOIS HISTORICAL COLLECTIONS
shall issue a warrant or Avarrants to the person or persons so entitled
on the Territorial treasury, for the amount of his certificate ; which
warrant as well as all other warrants, shall draw interest until paid
at the treasury.
Sec. 3. Be it further enacted, That the following shall continue
for one year commencing on the first day of -January one thousand
eight hundred and eighteen, to be the salaries of certain officers, as
follows, to-wit : To the Auditor of Public Accounts, the sum of three
hundred dollars ; to the Territorial treasurer, the sum of two hun-
dred and fifty dollars.
Sec. 4. And be it further enacted, That there shall be paid out
of the Territorial treasury to the following persons, to-wit : To E. K.
Kane, for his services for furnishing the printers with a copy of the
laws of the last session of the legislature, and superintending the print-
ing of the same, the sum of sixty-five dollars : to John W. Gillis, the
sum of two dollars per day, for each day the legislature set in his
house at this session : to Thos. Vance and Jacob Fisher, for wood at the
present session, thirty-six dollars : to Edward Cowles, for stationary
and pitchers, fifteen dollars and eighty-eight cents • to Berry & Black-
well, for printing a memorial to congress praying for a state govern-
ment, five dollars: to E. C. Berry, Auditor of Public Accounts, for
books, stationary and book case for his office, fifty-one dollars and fifty
cents : to John Thomas, for sundries furnished the engrossing and
enrolling clerk, seven dollars and twenty-five cents : to Edward N.
Cullom, for two day's attendance before he could be qualified to take
his seat as a member, six dollars : to George Fisher and William H.
Bradsby, three dollars each, for their attendance on the first day of
the sesssion ; the house having adjourned at an early hour, before
their arrival.
George Fisher,
Speaker of the House of Representatives.
Pierre Menard,
President of the Legislative Council.
Approved — January 9, 1818,
Ninian Edwards.
laws of 1817—1818 363
RESOLUTIONS.
RESOLVED by the Legislative Council and House of Represen-
tatives, That John Thomas be appointed to furnish a copy of the
laws of the present session, to the printers, for which, he shall upon
the completion thereof receive the sum of three dollars per day for
each day necessarily employed in doing the same ; for which he shall
make out and render an account to the Auditor, whereupon he shall
issue his warrant for the amount.
RESOLVED, That so soon as the Public Printers Messrs. Berry
and Blackwell, shall procure a certificate from the Secretary of the
territory, of the completion of the printing of the laws and journals
of the present session of the legislature, it shall be the duty of the
Auditor of public accounts, to issue a warrant to said Berry &
Blackwell, for the amount to which they shall be entitled according to
their several contracts for printing the same; and it shall be the duty
of the Public Printers, to ascertain from the Secretary of the territory,
the number of journals to which each county may be entitled accord-
ing to the population of the said counties, as may to him appear just
from the last returns in his office, and forward the same to the clerks
of the county courts respectively, to be by them distributed in the best
manner for public information ; for which service compensation shall
be made at the. next session of the legislature.
RESOLVED, That the public printers be required to print and
deliver to the secretary of the territory, six hundred copies of the
laws of the present session of the legislature ; and the secretary of the
territory is hereby authorised to distribute the laws to the several
counties, and to employ such person as may be necessary to convey
them to the clerks of the several county courts ; for which, compensa-
tion shall be made at the next session of the legislature.
George Fisher,
Speaker of the House of Representatives.
Pierre Menard,
President of the Legislative Council.
Approved — January 9, 1818
Ninian Edwards.
INDEX
Abatement of suits, 131-32.
Adams, Herbert, clxxxiv n., ccix n.,
cccxvi.
Adams, James Truslow, cccix n.,cccxx
n., cccxxiv n.
Adams, John, lxxix n.
Adams, John Quincy, on admission of
foreign states, lvi; on congressional
power over territories, ciii n., ex,
exxxvii, clxii n., cciii.
Adjutant general, 81, 88-89, 142, 318;
compensation, 117, 180, 223. See also
Illinois Territory: militia.
Administrators. See Estates, settle-
ment of.
Adultery, 22-23.
Alabama Territory, judicial system,
liv; laws, ccccxxxvii n.; and ordi-
nance of 1787, ccxi n., ccxiv n.,
ccxvi-xviii, ccclxxxvii n.
Alexander, William, 196.
Alvord, Clarence W., ccxxiv n., ccclvii-
viii.
America (111. Terr.), 327-28, 329, 332.
Ames, Fisher, cccxlvii.
Apperson, David, 246.
Appropriation acts (1812), 80-81;
(1813), 116-18; (181J,), 178-79, 179-
80; (1815-16), 222-24; (1816-17), 273-
74; (1817-18), 361-62.
Arizona Territory, clxix n., cciv n.,
ccccxxxvii n., ccccxxxviii n.
Arkansas Territory, liv, exxxvi, clxix
n., ccclxxxvii n., ccccxxxvii n.
Articles of Confederation, on acquisi-
tion of territory, lv, lviii, lxxvi sea.;
on admission of colonies, lviii, lxxv;
amendment of, xci-ii, exc-xeii,
eclxvii; compact nature; clxxxix;
and Constitution, xc n.-xci n.,xcvii;
ratification of, and western land
claims, lxiii-lxxiv.
Arundel, William, 117, 180, 224.
Assault and battery, 5.
Assessors, 13, 133, 158-59, 319.
Attorneys, circuit, 266-67, 325; dis-
trict, 140, 153, 157, 173-74, 180, 221-
22, 223; fees, 31, 113; nonresident,
practice in Illinois, 5-6, 238-39.
Attorneys general, territorial, xliv,
cccclxix-lxxiii;
of Illinois Territory: appoint-
ment, ccccxxxiv n.; as county prose-
cutor, cccclxxi n. ; duties, 23, 31-32,
38; salary, 78, 117, 180.
Auditors of public accounts, appoint-
ment, 63; compensation, 78, 144-45;
court records audited by, 210; tax
duties, 60, 61, 62, 63, 69, 132, 175,212,
215, 265, 297, 314-15.
Audrain, Peter, ccccxxv n.
Backus, Elijah, 81.
Baldwin, Abraham, cccxviii n.
Baldwin, Henry, exxxvi.
Bancroft, George, cccviii, cccxxiii n.,
ccclxvii.
Bane, James, 293.
Bank notes, 246, 247.
Bank of Cairo, 340-48.
Bank of Edwardsville, 334-40.
Bank of Illinois, 239-46.
Bank of Kaskaskia, 348-54.
Bank of Michigan v. Williams,
ccccxxxix.
Bankruptcy, cccxlii, 250-51.
Bankson, James, 312.
Barbour, Philip P., exxxvi.
Barrett, Jay Amos, cccxx n., ccclxxii
n.-iii n.
Bart, Julian, 203.
Basey, Isaac, 274.
Bates, Frederick, ccccxxxv n.
Beaucoup creeks, 326.
Beavienue, Michael, 274.
Bechtle, Henry, 327-28.
365
366
ILLINOIS HISTORICAL COLLECTIONS
Beck, Paul, 66, 108.
Bell, John, clxxii n.
Belleville (111. Terr.), 197, 348, 354.
Bennett (Bennet), William, 224, 274.
Benton, Thomas Hart, on congres-
sional power over territories,
xcviii-c;
on Dred Scott case: cxxxiii-iv n.,
cxxxv, cxxxviii; and constitutional
extension to territories, cxxxix,
cxliii n., cxliv-v, cxlvii n., cliv;
on nature of territorial govern-
ment, ccxcvi n.-vii n.; on ordinance
of 1784, cclviii n., cclx n. ; on ordi-
nance of 1787, cxxi n., cxxii n.,
cxcvi n.; on western trade, cccxxxiv
n.
Berrien, John Macpherson, cxxxvii-
viii, clxxii n.
Berry, Elijah Conway, 362.
Berry & Blackwell, 362, 363.
Bienvenue, Henry, 318.
Big Muddy River, 312.
Biggs, William, xlviii n., 51, 195-96.
Billiard tables, tax on, 158-59, 204-5.
Billington, Ray, cccvii n.
Black, H. C, civ n.
Bland, Theodorick, lxii n.-iii n.,
cclxiv n., cccxxvii n., ccclxxxi.
Blount, William, ccccxxx, ccccliv.
Blume, W. W., ccccxxxiv, ccccl.
Boman, John, 235.
Bond, Shadrach, 318, 340, 341, 354.
Bond County (111. Terr.), courts, 256,
257, 264, 355, 356-57; creation, 254-
56; elections, 255-56, 327; tax collec-
tion, 272.
Boon, Joseph, 185.
Boon, William, 215.
Bowers, Claude G., cccix n., cccxx n.,
cccxxi n.
Bowers, Joseph, 298.
Bradford, William, ccclxxxix n.-xc n.
Bradsby, William H., 362.
Bradshaw, John, 66.
Breese, Sidney, ccxlvii n.
Bribery, 93.
Bridges, 310-11, 326.
Brooks, Zephna, 215.
Brown, Jesse B., 354.
Brown, Warren, 340, 341.
Browne (Brown), Thomas C, 322.
Brownsville (111. Terr.), 272.
Burglary, 25.
Burke, Edmund, ccclvii.
Burnet, Jacob, ccccix n., ccccxli-ii n.
Burnett, E. C, ccii n., cclxxx, cccxxii
n.
Byrd, Charles Willing, cccxcviii.
Cadwell, George, 66, 108, 298.
Cahokia (111. Terr.), courts in,
xxviii n., xxx n.-xxxi n., 6-7, 8-9, 12,
46-47, 66, 108.
Cairns (Carnes), Caldwell, 108, 298.
Cairo (111. Terr.), 340-48.
Caldwell, John, 354.
Calhoun, John C, on constitutional
"extension" to territories, cxxxvii,
cxlii, cxliii, cxliv, cxlix-1, clii seq.;
on Missouri Compromise, ciii, ex,
cciii.
California, clxix n., clxxii n., ccxiv n.,
cccxvi n.
Campbell, David, ccccii, ccccxxix-xxx.
Campbell, John Archibald, lxxxviii n.,
ex, exxiii-v, exxxiii.
Campbell, Samuel R., 246, 298.
Canada, lxxv.
Canals, 285-89, 327-33.
Capital punishment, 36, 138, 225, 226.
Carmi (111. Terr.), 298, 348, 354.
Carnes. See Cairns, Caldwell.
Carr, W. C, cccclxxiii n.
Carrington, Edward, eclxvii,
cccxxxviii, ccclxiv, ccclxxxiv.
Carter, Clarence Edwin, ccccxlvi.
Carthage (111. Terr.). See Harrison-
ville (111. Terr.).
Cass, Lewis, cccxcvii n.
Catron, John, cv n., exxx n., exxxii n..
cxlvii n.
Cattle, tax on, 39, 234.
INDEX
367
Census (1812), 117-18; (181$), 315-17.
Certiorari, writs of, 150-51.
Chamberlain, Jean Bte., 117.
Chambers, Nathan, 66, 108.
Channing, Edward, on ordinances of
1784 and 1787, xciii n., ccxxxviii,
ccl-li, cccviii, cccxi n., cccxx n.,
cccxxiii n.-iv n.
Chase, Jeremiah Townley, cclxxxv n.
Chase, Salmon P., clxiii n., ccccxvi,
ccccxliv.
Chase, Samuel, lxxxviii n.
Chillicothe (Ohio), 247.
Cincinnati (Ohio), xxii, xxxvi, xxxvii,
247.
Citizenship, U.S., cxxxi, clxx n.
Claiborne, William Charles Coles, ap-
pointments of, cccclxviii; on duties
of territorial governor and secre-
tary, cccxciii n.-iv n., cccxcvi n.,
cccxcix n. ; as Louisiana commis-
sioner, ccclxxxvii n.; and territo-
rial legislature, ccccliv n.; vetoes
of, cccclii n.
Clark, Abraham, ccxxxi n., ccciv n.
Clark, George Rogers, ccxxiii, ccxxvi
n.
Clay, Henry, cxxxvii, cli n., clvii.
Clerks of courts, appointment of,
cccclxvii-ix; duties, 23-24, 73, 74,
94-95, 96, 188-89, 190, 217;
of Appeals, 208, 209, 221, 262,
305-6, 360; appointment of, liv n.,
260;
Chancery, 53-54, 55, 56, 57, 82;
Circuit, 209, 256, 261, 262, 263-64,
358-59; appointment of, lii, liv n.,
259, 264, 358;
Common Pleas, court records kept
by, 111; election duties, 93; fines
collected by, 100; free Negroes reg-
istered by, 91-92; tax duties, 61, 62,
63, 68, 69, 70;
County, appointment and fees of,
150, 201, 202; duties, 13, 20-21, 169,
199-202, 263; laws distributed by,
363 ; letters of administration
granted by, 275; oaths administer-
ed by, 205-6, 253; records kept by,
250, 268, 286, 306; tax duties, 12-13,
174, 316, 224-25, 269; writs issued
by, 167-68;
General, appointment of, cccclxv,
cccclxvii-ix, 105, 359-60; court rec-
ords kept by, 10, 76, 102; fines col-
lected by, 100; offices of, 9; writs
issued by, 98, 103-4, 106;
Supreme, 140, 141, 151, 156, 163;
appointment of, li, lii, 139.
Clerks of towns, 319.
Cock fighting, 27.
Coles, Edward, clxxxiii-iv, cccxx n.,
cccclxvi n.
Colorado, cxcvii n.-viii n., ccccxxxvii
n.
Commissioners, for census, 117-1S,
315-17; for land disputes, 41-45. See
also County commissioners and
Township commissioners.
Compacts between Confederated
States, lxxii, lxxiv, xci, cii, cxx-xxi,
cxc-xciv, cclxx; alteration of, ccv,
ccvi n.-vii n., ccxxii-iii, cclxxii;
Thomas Hart Benton on, c n.; under
Constitution, xciv, xcvii, cxcviii-ix,
cc-cci; Nathan Dane on, cxcvi n.,
ccviii, ccxix n., ccxxxiii n.; on Illi-
nois Country, ccxxvi-xxxi, ccxxxv-
vi; Thomas Jefferson on, ccxxxii n.,
cclxii, cclxvii-ix; Rufus King on,
ccxxxiii n.; on laws in ceded terri-
tory, ccccii-iii, ccccxxix; nature of,
clxxix-lxxx; and ordinance of 1787,
clxiii-vi; Arthur St. Clair on, cxcvi
n.
Compromise of 1850, clvii.
Comyges, John G., 340 seq.
Confederation, relation to new Union,
Ixxvii n., lxxxix n., xc, ci n., cxiv n.,
cxix-xx, cxcii-iii, ccccxiv n.-xv n.
See also Compacts between Confed-
erated States and Articles of Con-
federation.
Congress, and executive department,
368
ILLINOIS HISTORICAL COLLECTIONS
cccxc seq., cccclxiv-v; members of,
cxlix; on ordinance of 1787, cciv
seq.. ccxlv; power to acquire terri-
tory, Iv, lviii, xcv-viii, cxvi, cxxvii-
ix;
power to govern territory:
Thomas Hart Benton on, xcviii-c;
constitutional restraints on, cxxvi-
vii, ccxv, cccxiii; Federal Conven-
tion on, c-cii, cvi; and slavery pro-
hibitions, cxxx seq., cxlix, ccxxxvi-
vii; see also Constitution: rules-
and-regulations clause;
and territorial courts, xxii-iii,
xxviii-ix, xl, xli, xliv-v, lii-iv, 208:
territorial delegate to, ccxci,
ccclxxix, cccclxxvii n., 71, 93, 118;
and territorial laws, ccccxii-xiv,
ccccxvii, ccccxxii-viii, ccccxxxix n.,
ccccxliii-vi, cccclxxvii n. See also
States, new.
Connecticut, and Articles of Confed-
eration, lxvi n., lxviii; and western
lands, lxx, lxxiii n., lxxi-iii.
Connecticut Land Company, lxxxii-
iii, cccl n.
Connolly, John, cccxxxi n.
Constables, bonding of, 206-7; of
cities, 319-20, 321; duties, 20, 73,
155, 163-64, 165, 167, 271; fees, 73,
151, 170-71, 271.
Constitution, U. S., amendments to,
ccclxxxi n.; due process clause,
cxlvi-vii, cxlviii; illiberal character,
cclxxxv, ccclx-lxi; new-states clause,
lvi-vii, lxxv, xciv-v, cxvi-xviii,
cxxvii-viii, cxl, clxxii n.; prior-en-
gagements clause, xcix n.-c n., cxiv
n., cxvii, cxx-xxi, ccxxii; privileges-
and-immunities clause, cl-li, clii n.;
and protection of slave property,
cxxxix seq.; reserved-claims clause,
cxvii, cxviii, cxxvii; rules-and-regu-
lations clause, lv-lvi, xcix n.-c n.,
c seq. See also Articles of Confed-
eration: and constitution; Ordi-
nance of 1787: and Constitution;
Taney, Roger; and Territories, re-
lation to federal system.
Constitutional Convention. See Fed-
eral Convention.
Conway, Joseph, 339, 354.
Cook, Daniel Pope, 229, 274.
Cook & Blackwell, 278.
Cooley, Thomas M., ccx n.
Coroners, 151-52, 189, 307.
Corporal punishment, 91-92, 138, 154,
226, 227.
Corwin, E. S., cxlix n., cliv.
Counterfeiting, 225-28.
Counties, boundaries altered, 120-21,
128, 239;
creation of: acts for, 128-30, 185-
86, 195-98, 215-17, 217-19, 247-49,
254-56, 290-91, 292-94, 312-14; by
proclamation of governor, cccclxi,
cccclxxiii-vi;
officials of: commissions for, 220-
21; eligible to legislature, 152-53;
irregularities of, 11, 18-19, 51-52,
85-86, 113, 193-94, 198, 234, 265-66,
322-23;
public warehouses in, 251-53;
seals of, 303.
County commissioners, to fix county
seats, 79; to take tax lists, 67-70,
316. See also Counties: creation
of; County seats; and Taxation: of
land.
County seats, cccclxxiii-v, 66-67. 108-
10, 234-36, 272, 294-96.
Courts,
of Ajweals, lii-iii, 207-10, 260-61,
262, 263-64, 361; see also Courts:
Supreme;
of Chancery, xl-xli, lii, 5, 52-57;
Circuit, xlvi, lii-iv, 76, 192-93,
308-9; laws on (1815-16), 203-4, 207-
10; (1816-17). 256-63, 263-64; (1817-
18). 324-25, 355-61; in Northwest
Territory, xxxiv;
Common Pleas, xlvi, xlvii-viii, 1;
appeals from, 98; fines, 77, S9;
judges, 39-40, 58, 79;
INDEX
369
jurisdiction and powers: ap-
pellate, 40, 58-59, 76, 97, 102; bonds
approved by, 63, 70; county build-
ings erected by, 67, 109, see also
Counties: creation of and County
seats; over county commissioners,
62, 67-68, 110; in debt cases, 308-9;
ferries licensed by, 72; free Negroes
indentured by, 92; of taxation, 13;
location, 66, 108, see also names
of specific counties; in Northwest
Territory, xxiv; rules and prac-
tice, 73-74; sessions, 58, 86, 90-91,
.110-12;
County, abolished (1S11), 40;
(1813), 361; creation and reorgani-
zation (1809), 6-7; (18U,), xlviii,
149-50, 169; judges, 7, 149, 153, 178,
202, 221, 250;
jurisdiction and powers: ap-
pellate, 12, 20-21, 25-26, 167-68, 271;
in bankruptcy cases, 250; bonds ap-
proved by, 173; bounty payments
authorized by, 192; county build-
ings erected by, 166; county officers
appointed by, 251-52, 267, 296, 322;
in debt cases, 199-202; ferries es-
tablished by, 158; over jails and
jailors, 18, 166; public warehouses
established by, 251-52; over revenue
expenditure, 173, 270; over ser-
vants, indentured, 227-28; of taxa-
tion, 13, 14, 166, 174, 269; toll rates
set by, 326; towns established by,
146;
seals, 303; terms, 7, 12, 149,
199; see also Counties: creation of;
County seats; and names of specific
counties;
General, xlvi-liv, 6, 22, 29, 30, 31-
33, 35, 37; laws on (1809), 7-8, 8-10,
16-17, 17-18; (1811), 46-47; (1812),
52-57, 75-76, 78; (1813), 98-108;
(1817-18), 359-61; of Northwest Ter-
ritory, xxi seq., xxxiii n.; rules and
practice, 73-74; see also Courts: of
Appeals and Courts: Supreme;
Justices', 355-56;
Justices of the Peace, xlvi, 153,
169-70, 270-71, 283; appeals from,
9, 20-21, 25-26, 40, 58, 76, 94, 150-51,
166-68, 271;
duties: bounty claims certified
by, 191-92; county courts held by,
7, 10, 40; depositions taken by, 54,
305-6; oaths administered by, 79;
jurisdiction and powers: xliii
n., 20, 161-65, 211, 271; in adultery
cases, 22-23; in assault and battery
cases, 5; in condemnation proceed-
ings, 284; in debt cases, 165; over
estrays, 190; in gambling cases,
28-29, 30-31; Indian trade laws en-
forced by, 154-55; over servants
and slaves, 91, 92, 157-58; see also
Courts: Justices';
Orphans', xxv, xl;
of Oyer and Terminer, in Illi-
nois Territory, xlvii, 99, 258; in
Northwest Territory, xxv, xxxiv,
xxxvii, liii n. ;
Probate, xxiv, xl;
Quarter Sessions of the Peace,
xxiv-v;
Supreme, xlvii-liv, 136-41, 160;
see also Courts: of Appeals and
Courts: General.
See also Clerks of courts; Judges;
and Practice and procedure.
Cowles, Edward, 362.
Cox, Robert, 215.
Cox, Thomas (Kaskaskia), 5.
Cox, Thomas (Union Co.), 293.
Craig, Thomas E., 133, 185.
Craw (Kraw), John, 354.
Crawford, William H., ciii, ex, clxii n.
Crawford County (111. Terr.), courts,
256, 257, 264, 355, 356-57; creation,
247-49; and Edwards County, 272-
73; elections, 248-49, 291, 296; mili-
tia, 265, 318; seat, 294-96.
Crimes, 25. See also specific crimes.
370
ILLINOIS HISTORICAL COLLECTIONS
Crittendon, Thomas Y., cccclxxi n.
Cullom, Edward N, 248, 295, 362.
Currency, 246, 247.
Curtis, Benjamin Robbins, lxxxiii,
cliii-iv, civ; on ordinance of 1787,
cciii, cxcvi-vii; on rules-and-regula-
tions clause of Constitution, cviii
n., cxviii-xix, cxxxiii, cxxxiv-v,
cxlviii.
Curtis, George Ticknor, lxxxv-vii,
lxxxix n., xciii n., cclx-lxi.
Curtis, W. E., cccxx n.
Cutler, Manasseh, and Nathan Dane,
ccxxxv, ccclxxiv n. ; on frontier sep-
aratism, cccxxxi n.; Ohio Company
agent, ccclxv n., ccclxviii, ccclxx-
lxxi n.; and ordinance of 1787,
ccclxix-lxx, ccclxxii-vi, ccclxxviii,
ccclxxxi-ii n.
Dakota Territory, cciv n., ccccxxxvii
n., ccccxxxviii n., ccccxlv n.
Dane, Nathan, lxxviii n., clxxiv-vi;
on admission of states, ccclxi n.;
biographical sketch, ccclxvii n.;
and Manasseh Cutler, ccxxxv,
ccclxxiv n.; on Illinois Country,
ccxxx n., ccciii-iv; on interstate
compacts, cclxix; and Rufus King,
ccxxxv, ccclxxxii; and Richard
Henry Lee, cccxxxviii; and James
Monroe, cclxxv, cclxxxvii n.; on
ordinance of 1784, cclviii n., cclx n.,
cclxii, ccclxxvii;
and ordinance of 1787: author-
ship, ccclxiv-vii, ccclxxxiii seq.;
compact articles, clxxx, cxcvi,
cclxix n.-lxx n., ccclxxviii n.,
ccclxxx - lxxxi ; impairment-of-con-
tracts clause, ccclxxvi; Indian
clause, ccclxxvi, ccclxxxii; intestacy
provisions, ccxxix-xxx, ccxxxi n.,
cccxi-xii, ccclxxvii-viii; objectives
for, clxxii n., ccxcv, cccv n., cccxxiv-
vi, ccclvi-vii; population require-
ment for new states, cclxxviii-ix;
slavery article, ccxxxiii-iv, ccxxxv,
ccclxiv; on territorial administra-
tion and government, ccclxxxviii-
ix; on territorial delegate to Con-
gress, ccxci.
Davenport, M. S., 354.
Davis, Nathan, 215, 216, 272.
Davis, Thomas Terry, xxx n., ccccxxii,
ccccxxvi n.
Deane, Silas, lx, cccxxiii. cccxxvii n.,
ccclxxix.
Debts and debtors, cccxlii, 24-25, 27,
135-36, 246-47, 307-9. See also Bank-
ruptcy and specific courts: juris-
diction and powers.
Decoigne, Lewis, 90.
Delaware, lxviii n., lxix.
Depositions, 23-24, 188, 305-7.
Dickinson, John, cvi-vii, cclviii,
cccclvii; and Articles of Confedera-
tion, lxiv-v, lxvi n.-vii n.
Disenfranchisement, 226.
District of Louisiana. See Louisiana
Territory.
Divorce, 309-10.
Dixon, Luther Swift, cxv n.
Doctors, 297-300.
Donaldson, James, cccclxxii-iii.
Douglas, Stephen Arnold, clvi.
Doyle, Benjamin H., cccclxxi n.
Dred Scott case, lxxxvi n., cxxx seq.,
ccxlvii.
Duane, James, lxxxi n., xciii,
cclxxxiii-iv, cccxxvii.
Dueling, 36-38, 187-88.
Duncan, Matthew, 121, 178-79, ISO,
224.
Dunkards, 87-88, 211.
Dunlap, John, 248.
Dunn, J. P., on ordinance of 17S4,
cclviii-lx, cclxvii-viii; on ordinance
of 1787, ccxxxiv, ccxxxvi n.,
ccclxxiii n., ccclxxvii n.-viii n..
ccclxxxi, ccclxxxii n.
Dwight, Timothy, cccxxxix n.
E O tables, 30, 31, 34.
Easton, Rufus, ccccxii n., cccclxxii.
INDEX
371
Echols, Jesse, 293.
Edwards, Ninian, appointments of,
ccccxxxiv n.; counties created by,
cccclxxvi; and militia, cccclxvi; on
territorial courts, xlviii n., 1-lii;
on territorial laws, ccccix n., 5;
and veto power, cccclii n.
Edwards County (111. Terr.), courts,
136, 149, 234, 256, 257, 264, 355, 356-
57; creation, 128-30; district attor-
ney for, 222; division, 247-49; elec-
tions, 129-30, 186, 249, 291; militia,
265; tax collection, 193-94, 272-73.
Edwardsville (111. Terr.), 297, 298,
334, 348, 354.
Effland, R. W., ccii n.
Elections, 70-71, 93, 118. See also
General Assembly; Towns, laws on;
and names of specific counties.
Ellicott, Andrew, ccccxxiii n.
Elvira (111. Terr.), 348, 354.
Enoch, Isaac, 108.
Estates, settlement of, 14-16, 110-12,
131-32, 275.
Estrays, 189-90.
Evans, George, 354.
Evans, Owen, 66, 110, 354.
Executions, 135-36, 246-47. See also
Practice and procedure and Sher-
iffs: duties, court orders executed
by.
Executors of estates. See Estates,
settlement of.
Farm produce, inspection of, 251-53.
Faro bank, 30, 31, 34.
Farrand, Max, lxi n., cclviii, cclxxxi
n., cccvii, cccxx n., cccliv.
Federal Convention, lxiii, xciv-viii,
clvii-ix, clxxxvii.
Federal system. See Territories, re-
lation to federal system.
Federalist, The, Ixxxiv, lxxxv, xcii,
cxi, cxii.
Fees and salaries, judicial, 16-17, 82,
113, 151-52, 169-71, 221; of terri-
torial officers, ccccxxiv-vi, 78, 144-45.
See also Appropriation acts and
titles of specific offices.
Felonies, 25.
Fences, 302.
Ferguson, Hamlet, 66.
Ferguson, Thomas, 218.
Ferries, 71-72, 158, 205, 283; at Shaw-
neetown, 127, 187, 303.
Fines and forfeitures, 40-41, 45, 77,
89. See also Revenue and specific
crimes.
Finney (Finny), James, 354.
Fisher, George, 298, 362.
Fisher, Jacob, 362.
Fisher, James, 312.
Fisheries, 301-2.
Flint, Timothy, cccxxxiii.
Florida Territory, cxxxv n., clxix n.,
ccxcvii n., ccccxlv n., cccclv.
Food inspection, 251-53.
Ford, Paul Leicester, cccviii, cccxxiv
n.
Forgery, 25.
Fornication, 22-23.
Fouke, Philip, 80.
France, lx, clxxvii. See also Treaty
of 1783.
Franklin, Benjamin, cccxxxi n.
Franklin, State of, cclxiii, cccxxxvii
n., cccl-li, cccciii.
Franklin County (111. Terr.), courts,
324-25, 355, 356-57; creation, 290-91;
elections, 291; tax collection, 323.
Frauds, 14-16, 65.
Frazer, George W., 133.
Frontier, governments organized,
cccxlix-li; separatism of, cccxxix-
x x x i i i, cccxxxv-vi, cccxlv-viii,
ccclviii-ix; settlers, character of,
cccxxviii, cccxxxiii-iv, cccxxxvi-xlv.
Gage, Thomas, ccxxiv, ccciv n.
Gallatin, Albert, cxcvi n., cccxcix n.,
cccclxvi n., cccclxxi n.
Gallatin County (111. Terr.), bounda-
ries and division of, 120, 128-30,
185-86, 217-19, 239, 290-91; courts,
372
ILLINOIS HISTORICAL COLLECTIONS
58, 66, 90-91, 136, 149, 187, 256, 257,
264, 355, 356-57; district attorney
for, 222; elections, 129, 133, 186, 219,
249; tax collection, 51-52, 86, 113,
193-94, 234, 265-66.
Gamble, Hamilton Rowan, ccxlvii.
Gambling, 27-35, 77-78.
Gano, John Stites, ccccxxv n.
Gard, Seth, 284, 295. 354.
Garrett, Moses, 290.
Garritson, James, 66.
General Assembly (111. Terr.), elec-
tion districts for, 186, 197, 216, 219,
249, 255, 291, 313, 326-27; journals
of, 181, 229;
members and officers: 70, 118,
152-53; compensation of, 80, 116-17,
179-80, 223, 273, 322, 361-62;
stock purchases by, 240, 242, 333,
334, 354; and territorial judges,
xlvi, xlviii n., xlix-liii.
Gentle, John, ccccxxxiv n.
Georgia, and Articles of Confedera-
tion, lxvi n., lxviii n., lxix;
land cession: and compacts with
Union, cxvi, cxc-xci, cc n.-cci n.,
ccxi n., cccclv n.; and Federal Con-
vention, xcv, xcvii, xcviii.
Gerry, Elbridge, ccliv n., cclvi n.,
ccclxxxii.
Gibson, John, cccxxviii n., cccclx.
Gilbreath, James, 11, 180.
Gill, James, 215.
Gillaspie, Robert, 254.
Gillis, John W., 362.
Gilman, Joseph, xxxviii n., ccccxii n.
Governor, Illinois Territory,
appoints: census commissioners,
315; clerks of courts, cccclxviii-ix,
55, 105, 139, 202, 355, 358; county
treasurers, 172-73; judges, 202, 356;
militia officers, cccclxvi, 45, 81;
bonds taken by, 63, 259; census
ordered by, 117-18; commissions is-
sued by, 220-21; contracts awarded
by, 79; courts ordered by, 258; elec-
tions called by, 71; and extradi-
tions, 37-38; financial powers, 17,
203, see also Appropriation acts;
fines remitted by, 40-41; and Indian
affairs, 89-90, 154-55; as legislative
agent, in bank elections, 242; legis-
lature prorogued by, cccclv; militia
powers, 45, 46, 81, 88-89, 141, 143,
186, 218, 265; oaths administered
by, 156, 205-6; pardons and re-
prieves granted by, 41; statehood
notice given by, 317; and veto
power, cccclii. See also Edwards,
Ninian.
Governor, territorial, ccxc, ccxci; ab-
sences of, xxx n.,xxxiii,cccxcvi-viii;
appointing power, cccxciii n.,
cccclxv-lxxiii; appointment of, cxx
n., cccxcii n., cccclxiv; compensa-
tion of, ccccxxv n., ccccxxvi; coun-
ties created by, cccclxxiii-vi; and
Indian affairs, cccxcix-cccc; legisla-
tures prorogued by, ccclxxviii-ix,
ccccliii-vi; and militia, cccclix-lx,
cccclxv n., cccclxvi; oaths of, cccxc
n.; pardoning power, cccclxiii-iv;
proclamations of, cccclx-lxiii; veto
power, ccclxxviii, cccciv, ccccxlvii,
cccclxxvii n., ccccl-liii. See also
Governor, Illinois Territory and
names of specific territories.
Graham, James S., 284, 354.
Grammer, John, 293.
Grand juries, 26, 31, 32, 35, 37, 99,
100, 101, 192-93. See also Juries and
jurors.
Gray, James, 284, 354.
Grayson, William, cclxv, ccclxxiv n.,
ccclxxv, ccclxxxiii.
Great Britain,
and American colonies: frontier
separatism of, cccxxx-xxxi; trade
regulations, cvi-vii ;
colonial system of, cclxxxi,
ccclvii-viii, cccclvi-vii; and Illinois
Country, cccxl-xli. See also Treaty
of 1763 and Treaty of 1783.
Green, Griffith, ccccxiii n.
INDEX
373
Green, Nathaniel, 66.
Greene, Evarts Boutell, xc n., ccxciii,
cccxix n.
Greenup, William C, 118, 224, 274, 354.
Griggs, Jesse, 215.
Griswold, Stanley, cccxciv n., 39, 47.
Gurley, J. W., cccclxxii.
Hamilton, Alexander, xciv, ci n.,
cxxvi, cclxiv n., cclxxviii.
Hamilton County ( Northwest Terr.),
xxxvii n.
Hamtramck, John Francis, ccxli n.
Hancock, , Dr., 298.
Handy, Thomas, 248.
Hanging, 225.
Hardy, Samuel, ccxxviii n.
Harmar, Josiah, cclxiv n., cccxlvi.
Harris, Thomas H., 340, 341.
Harrison, William Henry, xlii n.,
cccclv; appointments of, cccclxvii-
viii; on creation of counties,
cccclxxvi; ferries licensed by, 127;
pardons granted by, cccclxiv; sal-
ary, ccccxxv n.-vi n.; and territorial
attorney general, cccclxx, cccclxxii;
and veto power, cccclii.
Harrison (111. Terr.), 196.
Harrisonville (111. Terr.), 233.
Hay, Daniel, 284, 354.
Hay, Lowry, 185, 186.
Hayne, Robert Young, lxxviii n., cxcvi
n., cclviii n., ccclxi n.
Hays, John, 108, 117.
Hays (Hay), Samuel, 185, 246, 290.
Heath, William, 298, 354.
Henderson's Ford (111. Terr.), 301.
Henry, Patrick, ccxxvi n., cccxxxviii
n.
Henry, William, cclxxvii n., ccclxiv n.
Herbert, Thomas F., 340, 341.
Hibbs, Jonas, 110.
Hicks, John D., ccix n., cclxiii.
Highways. See Canals and Roads.
Hill's Ferry (111. Terr.), 327.
Hill's Fort (111. Terr.), 254,
Hillsborough, Lord, ccclvii.
Hinsdale, B. A.,
on ordinance of 1787: clxxxv,
clxxxviii, ccclxix, ccclxxxiv n.; rela-
tion to ordinance of 1784, cccxx n.,
cccxxiii n.; slavery article of,
ccxxxvii n.-viii n., ccclxxiv n.;
on treaty of 1763, ccxxiv n.
Hirst, F. W., cccxx n.
Hoar, George F., cxiii n., cxxvi n.
Hockett, H. C, lxxxviii n.-ix n.
Hogg (Hog), Stephen B., 185.
Holmes, David, ccccliv n.
Horse racing, 27.
House of Representatives. See Gen-
eral Assembly.
Howard, George Elliott, clxxxiv, ccix
n., cccxii n., cccxv n., cccxx n.
Howell, David, cclxii n., cclxviii n.,
cclxxxv n., ccxcv n.
Hubbard, Adolphus Frederick, 303.
Hulbert, A. B., cccxxiii n.
Hull, William, ccccxxi, ccccxlvii-1,
cccclx-lxi, cccclxiv, cccclxvi n.
Humphreys, Edward, 340, 341.
Hunsaker, Jacob, Jr., 293.
Hunter, Charles W., 340, 341.
Hunter, Narsworthy, ccccxxv n.
Idaho Territory, clx n., cciv n.,
ccccxxxvii n., ccccxlv n.
Illinois Country, government of (1763-
1787), cccxl-xlii, (1787-1807), cccli-
iv; influence on ordinance of 1787,
lxxxi n., cclxxxvi, cclxxxvii n.,
ccxcvii-ccciv; land titles, clxxxiii,
ccxxiii-xxxi, ccxxxv-vi, ccxlviii-ix;
settlers of, cccxxx, cccxxxi n.,
cccxxxix n.; slavery in, ccxxiii,
ccxxxi, ccxxxiv-vi, ccxxxix-xliii;
travel in, xxxiv n.-v n. See also Illi-
nois Territory.
Illinois Herald (newspaper), 147.
Illinois Navigation Company, 327-33.
Illinois River, cccclxi.
Illinois Territory, banks, 239-46, 334-
40, 340-48, 348-54; boundaries, "cciv
374
ILLINOIS HISTORICAL COLLECTIONS
n., ccvi-vii; climate and health,
46-47; currency, 246, 247; delegates
to Congress, 71, 93, 118;
judicial system: extended to
other territories, lii-iv; laws on,
xlvi-lii; see also Courts;
laws:
adoption and continuation of,
ccccxix-xx; from Georgia, 22-23,
23-24, 24-25 ; from Indiana,
ccccxxxiv, ccccxxxv n.-vi n., 5, 7, 8,
12, 25, 35-36, 47, 51, 71, 75, 76, 94,
99, 113, 159; from Kentucky,
ccccviii, 14-16, 18, 20, 26, 41-45,
45-46, 94; from Pennsylvania, 40-
41; from South Carolina, 45; from
Virginia, 27-35, 36-38;
discussion of, xvii-xxi; enforce-
ment of, 211; printing and distribu-
tion, 79, 109-10, 121, 178-79, 181, 229,
277; repeal of, 191; revision of, 181;
militia: laws (1811), 45-46; (1812),
73, 81; (1813), 87-88, 88-89; (18W,
141-44; (1815-16), 195, 211; 220-21,
222; (1816-17). 265; (1817-18), 318;
officers, cccclxvi, 63-64, 153; organi-
zation in counties, 186, 195-98, 215-
16, 218, 254-56, 265, 290, 290-91, 313-
14, 318;
newspapers, 38-39, 147, 305-6; and
ordinance of 1787, ccxxii, ccclxxxvii
n.; physicians, 297-98; records, 74-
75, 181, 323;
secretary: fees, 323-24; laws dis-
tributed by, 181, 277, 363; records
kept by, 74-75, 105, 181, 206, 260,
317;
seminaries in, 229; and state-
hood, petition for, 317. See also
Illinois Country.
Impeachment, 264.
Incorporation acts, of banks, 239-46,
334-40, 340-48, 348-54; of medical
societies, 297-300; of navigation
companies, 284-89, 327-33; of towns,
318-21, 340-48.
Indiana Territory,
attorneys: general, cccclxx; prac-
tice in Illinois, 238-39;
boundaries and division of, cciv
n., ccvi; counties created in,
cccclxxvi; courts, xxv, xxx n.,
xxxix, xli, xliii-iv, 1, liv; governor,
cccclii, cccclv; laws, ccccviii,
ccccxix; Louisiana administered
by. cxxxvi n., ccclxxxvii n.,
ccccxxxi; and ordinance of 1787,
ccxxii, ccclxxxvii n., ccccxxxii-iii.
Indians, reward for capture and kill-
ing of, 177-78; trade with, ccccxv n.,
ccccxxv n., 89-90, 154-55.
Indictments and presentments, 157,
304. See also Grand juries and
Practice and procedure.
Inspectors, for public warehouses,
251-53.
Intestacy, 110-12, 275. See also Es-
tates, settlement of and Illinois
Country: land titles.
Iowa Territory, cxxxv n., clxix n„
ccxi n., ccccxxxvii n., ccccliii n.
Jackson County (111. Terr.), courts,
256, 257, 264, 355. 356-57; creation,
215-17; district attorney for, 222;
division, 290-91; elections, 216-17.
291; seat, 272.
Jails, xxxiv, 18, 166.
Jameson, John Alexander, ccx n.
Jameson, John Franklin, lxi n., cccxi
n.
Jarrot, Nicholas, 66.
Jay, John, lxxx n., ccccxv n.; on
the West, cclxxi n., cclxxv-vi,
cclxxviii, cccxxxii, cccxxxiv n. See
also Treaty of 1783.
Jay's Treaty, ccxxv, ccxxxix.
Jefferson, Thomas, on congressional
power to acquire and admit terri-
tories, xcvi n., civ n., cxxvi; on in-
terstate compacts, ccxxxii n., cclxii,
cclxvii-ix, cclxxii n., ccxcv n.-vi n.;
INDEX
375
on Northwest Territory judges,
xxix, xxx n., xxxii-iii; and Arthur
St. Clair, cccxcix n., cccclxxiv-v;
on territorial administration,
cccxci, cccxcvi n., ccccxxi, ccccxxvi
n., ccccxxviii n., ccccxxxi, ccccli; on
territorial "states," clxxii-iv; and
Virginia land cession, ccxxviii; on
the West, cclxxi n., cclxxiii n.,
cclxxiv n., ccxci, cccv-vi, cccxxxii,
ccclviii. See also Ordinance of 1784
and Ordinance of 1785.
Jefferson County (Northwest .Terr.),
cccxliii n.
Johnson, Reverdy, cxxxvii.
Johnson, William Samuel, ccxxxi n.,
ccc, ccclxvii; and ordinance of 1787,
cclxxvii n., cclxxxvii n., ccxci,
ccclvi, ccclxiv n., ccclxxviii n.,
ccclxxxviii.
Johnson County (111. Terr.), courts,
58, 66, 136, 149, 256, 257, 264, 355,
356-57; district attorney for, 222;
division of, 215-17, 217-19, 292-93;
elections, 219, 326; seat, 66-67, 108-
10, 234-36, 293-94; tax collection,
51-52, 85-86, 198, 323.
Johnston, Alexander, lxxxviii n.,
cccxx n.-xxi n.
Jones, Joseph, Ixxii n.
Jones, Michael, 117, 224, 340, 341.
Judges,
of local courts: 37, 54, 104-5, 189;
law practice of, 35-36, 357-58;
territorial: appointment of,
cccxciii n., cccclxiv-v; legislative
functions, cccclvii-viii; on veto
power of governor, cccclii-iii. See
also Courts and Illinois Territory:
judicial system.
Judy, Samuel, 224.
Juries and jurors, duties, 24, 38, 65,
101, 286, 308, 331; fees and qualifi-
cations, 66, 151, 271; service, penal-
ties and exemptions, 100, 262, 270.
See also Grand juries.
Jurisdiction, lxxx-lxxxiv, xcii n., xcix
n.-c n., civ.
Justices of the peace. See Courts:
Justices of the Peace.
Kane, Elias Kent, 278, 318, 362.
Kansas Territory, clxix n., cciv n.,
ccccxxxvii n.
Kaskaskia (111. Terr.), cclxxvii n.,
cccxxx, 5, 197, 298, 301; banks, 343,
344, 348-54; courts in, xxx n., xxxiv,
6, 7, 8, 12, 66, 75, 98, 107-8, 260, 359;
government of, laws on, 118-20,
145-46, 318-21; land office, 144, 220.
229, 297.
Kaskaskia Indians, 89-90, 154-55.
Kaskaskia River, 301-2, 310-11, 327.
Keace, Peter, 295.
Kean, John, ccclxiv n.
Kenedy, Thomas, 248.
Kenny, Samuel, 66.
Kent, James, cccxxxiii.
Kentucky, admission to Union, clx,
clxix n., ccxiii, cccxvi n.; constitu-
tion, cclxxxi; courts, xli n.; and
Federal Convention, xciv-v, xcviii;
loyalty of, and separatist move-
ment, lxii, cccxxxii, cccxxxvi,
cccxlviii; population, cclxiv n.
King, C. R., ccclxxxv n.
King, Francis, cccclxxi n.
King, Rufus, on Congress, cccxix n.;
and Nathan Dane, ccxxxv, ccclxxxii;
and ordinance of 1787: on admis-
sion of states, cclxxviii-ix; com-
mittee service, cclxxvii, cclxxxvii n.,
ccclxiv n.; slavery article, clxxxiv
n., ccxxxii, ccxxxiii, ccclxxiv n.,
ccclxxv, ccclxxvii n.;
on settlement of the West, cclxxi,
cclxxiv, cclxxv, cclxxvi, cccxxix n.,
cccxxxiv n.
Kinney, William, 354.
Kirkpatrick, John, 66, 108.
Kirkpatrick, Thomas, 66.
376
ILLINOIS HISTORICAL COLLECTIONS
Knox County (Northwest Terr.), xxx
n., xxxv, xxxvi-vii, xxxviii.
Kraw. See Craw, John.
Land,
claims: of American colonies, lix-
lxiv; of Confederated States, lxiv
seq., xcvi-viii; Illinois Territory
laws on, 41-45, 74-75, 262;
condemnation of, 285-87, 330-31;
sales for debt, 307-8. See also Illi-
nois Country: land titles; Taxa-
tion: of land; and U.S. land offices.
Laws, territorial, adoption of, cccc
seq.; congressional power to annul,
ccccxvii-xviii, ccccxxi seq., ccccxliii-
vi; continuation of, from parent
territory, ccccxxviii-xxxviii; legali-
ty of, ccccxii seq., ccccxxxviii seq. ;
printing and distribution of,
cccxciii-v; repeal of, ccccxii-xiii.
Lee, Arthur, ccxxviii n., ccc.
Lee, Charles, xxxi, cccxc n.
Lee, Richard Henry, on frontier set-
tlers, ccxciv, cccxxxvii-viii; and or-
dinance of 1787, ccxxxviii n.,
cccxxvi, ccclxiv, ccclxxx-lxxxi.
Legislative Council, territorial, ccxc,
cccxcii n., cccclxxvii n. See also
General Assembly.
Legislatures, territorial, majority and
quorum, ccccxlvi-1; ordinance of
1787 provision for, cclxxxix n., ccxc-
xci, cccxxviii n., cccclvii; proroga-
tion of, ccccliii-vi. See also General
Assembly and names of specific ter-
ritories.
Lemen (Lemon), James, Sr., 108,
196.
Licensing, of ferries, see Ferries; of
Indian traders, ccccxxiv-vi, 154-55;
of physicians, 298-99, 300; of tav-
erns, 35.
Lincoln, Abraham, clvi.
Lincoln, Levi, cccxciii n., cccclxxi n.,
cccclxxiv-v.
Liquor, sale to Indians, 89-90, 154-55.
Little Wabash River, 284-89.
Littleton, Jacob, 354.
Livingston, Robert R., ccciii.
Loring, G. B., ccclxvii n.-viii n.
Lotteries, 30, 344.
Louisiana Gazette (newspaper), 5 n.
Louisiana Purchase, xcvi n., cxxvi,
cxxvii, cxxviii, cxlvii n.
Louisiana Territory, attorney gener-
al, cccclxxi-ii; governor, ccccliii,
cccclv, cccclxiii; laws, ccccxxviii,
ccccxxxi, ccccxl, ccccxliii; news-
papers, 39; and ordinance of 1787,
cxxxv n., cxxxvi n., cciv n., ccxi n.,
ccxiv, ccxxi-ii, ccxcvii n., ccclxxxvii
n.-viii n.
Lowell, John, ccclxviii n.
Lusk's Creek, 120.
Lyon, Matthew, cccxlii.
McClure, Robert, xxxii n., cccci n.
M'Fatridge, William, 293.
M'Ferron, John, 318.
McGlaughlin, James, cccclxxi n.
McHenry, William, 284.
M'Kee, John, 334, 339, 354.
McKinley, John, lxxx n., Ixxxiii n.
McLaughlin, Andrew Cunningham, on
American federal system, cclxxxi-ii,
cccxiii n., cccxvi-xvii; on ordinance
of 1787, cccx, ccclxxxv n.; on "sov-
ereignty," Ixxvi n.-vii n.
McLaughlin, R. K., 354.
McLean, John, on congressional
power to govern territories, cii, cv
n., cix; on ordinance of 1787, cxcvii,
ccxii n., ccxiv-xvi.
McMaster, J. B., cccxix n.
M'Roberts, James, 196.
Macy, Jesse, ccxxxviii.
Maddux, Leven, 312.
Madison, James, lxii, lxxii, clxxxix n.,
cccxlvii n., ccccliv n.; on congres-
sional power over territory, lxxxiv-
v, xcii-iii, xcvii, c-ci, ciii, cvi, cxi-
xii, cxxxvii n., cxl-xli, clxxxvii n.;
on Illinois Country government,
INDEX
377
ccxxxi n., ccci n., ccciii, ccciv; on
new states, lxxxv n., clviii, clxii n. ;
and Arthur St. Clair, cccxcix n.,
cccclxxi n., cccclxxv n.
Madison County (111. Terr.), boun-
daries and division of, 254-56, 311;
courts, 58, 66, 137, 149, 256, 257,
264, 355, 356-57; district attorney
for, 222; elections, 255; seat, 66-67,
108-10; tax collection, 51-52, 85,
272-73.
Maine, xciv, xcviii, clx n., clxix n.,
cccxvi n.
Malone, Dumas, cccxxii n., cccxxiv n.
Manville, Ira, 117.
Marietta (Ohio), local government of,
cccxlix, cccciii, cccclxii; seat of
Northwest Territory government,
xxii, xxxvi, xxxvii, xlv.
Marshal, territorial, xliv, 101.
Marshall, John (chief justice), lxxxiii
n., xcvi n., civ.
Marshall, John (Shawneetown), 133,
246.
Marshall, Samuel, 354.
Maryland, and Articles of Confedera-
tion and western lands, lix-lxxiii
passim, lxxviii-ix, clx.
Mason, George, cclxxiv n.-v n.
Mason, James, 339, 354.
Massachusetts, and Articles of Con-
federation and western lands, lxvi
n., lxviii, lxx; courts, xl; land ces-
sion, Ixxiii n., cclxx; and Maine,
lxxv, xcviii.
Maulding, Richard, 290.
Maxwell, Hugh H., 354; appropria-
tions to, 80, 81, 118, 180, 224, 274.
May, John, ccxlix n.
Mead, Cowles, cccxcix n., ccccliv n.
Mears, William, 180, 354.
Medical societies, 297-300.
Meigs, Return Jonathan, Jr., ccccxii
n.
Menard, Pierre, 117, 224, 354.
Messinger, John, 354.
Michigan Territory, admission to
Union, clxix n., clxx-xxi; attorney
general, cccclxx n.; boundaries of,
cciv n., ccvi-vii; courts, xxxi n.,
xxxiv n. ; governor, cccxc n., cccciii
n., ccccliii n., cccclxiv, cccclxvi n.,
cccclxvii; laws, ccccviii, ccccix n.,
ccccx, ccccxx, ccccxxxiv-v,
ccccxxxix, ccccxliii-iv; legislature,
ccccxxi n., ccccxlvii-1; and ordi-
nance of 1787, ccxi n., ccclxxxvii n.
Middleton, Reuben, 312.
Miles' Old Trace, 120.
Militia, territorial, cccclix-lx, cccclxv
n., cccclxvi. See also names of spe-
cific territories.
Mills and millers, 64, 237, 292, 301.
Ministers, 205, 283.
Minnesota Territory, cciv n., ccxi n.,
ccccxxxvii n., ccccxliii n.
Mississippi River, bottom lands, tax
rate for, 59, 176; canals and ferries,
71-72, 158, 329, 332; levees, 340-41.
Mississippi Territory, courts, xxxi n.,
xxxv n., xlii n., xlv; division, cxci
n.; governor, ccccliv-v, cccclxviii;
laws, ccccxviii n., ccccxxii-iv,
ccccxxvi-vii; militia, xx, ccccxxiii
n., cccclxvi n. ; and ordinance of
1787, cciv n., ccxi n., ccxiv n.,
ccclxxxvii n. ; slavery in, cxxxv-vi.
Missouri Compromise, ciii, ex, exxxvi-
viii, cciii, ccx. See also Dred Scott
case.
Missouri Territory, xli n., xlv, liv,
ciii n., exxxv n., ccxi n.
Monroe, James, on Congress, cccxviii
n.; and Illinois Country, lxxxi n.,
ccxxxvi-vii, ccxxxi, ccxcvii-ccciii;
on Missouri Compromise, ciii, ex,
exxxvi-vii, cciii; and ordinance of
1787, clxv, cclxxi-lxxx, eclxxxvi sea.,
cccv-vi, ccclxxviii-ix, ccclxxxviii,
cccciii-iv; and Virginia land ces-
sion, ccxxviii n.; on the West,
cccxxix n.-xxx n., cccxxxii, cccxxxiv
n.. cccxxxviii n.
578
ILLINOIS HISTORICAL COLLECTIONS
Monroe County (111. Terr.), courts,
256, 257, 264, 355, 356-57; creation,
195-98; district attorney for, 222;
elections, 196-98, 216; towns in, 233.
Montana Territory, cciv n., ccccxxxvii
n., ccccxxxviii n., ccccxlv n.
Moore (Moor), George, 66, 108.
Moore, James B., 196.
Morgan, George, cccxxxi-ii, cccxlviii
n.-ix n.
Morris, Erwin, 354.
Morris, Gouverneur,
and Constitution : new-states
clause, xcvi, cxxvi-vii, clvii-ix, clxiii,
clxxii n., cclxxvii, cclxxxv-vi; rules-
and-regulations clause, ci, cxii-xiii,
cxix, cxxv seq.
Morrison, Robert, xlviii n., 224.
Morrison, William, 80, 274, 310-11, 354.
Morse, John T., cccxxi n.
Mulattoes. See Negroes and mulat-
toes.
Murry, John B., 110.
Muzzey, D. S., cccix n., cccxxi n.-ii n.
Nebraska Territory, cciv n.,
ccccxxxvii n.
Negroes and mulattoes, 35-36, 91-92,
154, 155, 157-58.
Nevada Territory, cciv n., ccccxxxvii
n., ccccxxxviii n.
Nevins, Allan, ccix n.
New Hampshire, lxvi n., lxviii, lxx.
New Jersey, lxvii, lxviii n., lxix, lxx.
New Madrid (Mo.), cccxxxi n.
New Mexico Territory, clxix n., cciv
n., ccccxxxvii n., ccccxliii n., ccccxlv
n.
New York, and Articles of Confedera-
tion and western lands, lxvi n.,
lxviii, lxx; Constitution ratified by,
lvi, cccxvi n.; land cession, lxxi-ii,
lxxiii, lxxviii, lxxxii; and Vermont,
xcviii.
Nock, Albert Jay, ccxcix n., cccxx n.
North Carolina, and Articles of Con-
federation, lxvi n., lxviii n., lxix;
Constitution ratified by, lvi, cccxvi
n.; and Wautauga, cccxlv-vi,
cccxlvii n.-viii n.;
western lands of: and cession-
compacts, Ixxiv n., lxxxiii-iv, cxvi,
clxxv n., cxc-xci, cc n., cci n., ccx n.-xi
n., ccccii-iii, ccccxxix, ccccxxx; and
Federal Convention, xcv, xcvii,
xcviii.
Northwest Ordinances. See Ordinances
of 1784, 1785, and 1787.
Northwest Territory, area of, xxi;
attorney general, cccclxix, cccclxxi;
counties created in, xxxii n., cccclxi,
cccclxxiii-v; courts, xxi seq., xliii-iv,
1, cccclxvii, see also Courts; under
Great Britain, lxxxi n., cccxli;
judges, xxviii-xxxiii, ccccxi n.;
laws, ccccx-xviii, ccccxix;
settlement of: lxxi, cclxiii-vii,
cccxliii, cccxlvi-vii, cccxlix, ccccvii;
early plans for, cclxiii-vii, cclxxxii,
cccxxvii-viii, ccclxxii, ccclxxxi n. ;
slavery in, ccxlv-vi, see also Illi-
nois Country: slavery in;
states created from: boundaries
of, clxxi n., cciv seq.; equality of,
clxiii-viii; ordinance of 1784 on,
cclxix-lxx; ordinance of 1787 on,
cclxx seq. ;
travel in, xxxiv n.-v n. See also
Frontier.
Notes, promissory, 253-54.
Oaths, of public officials, laws on, 156
205-6; to suppress dueling, 36-37,
38, 187-88.
Ohio, admission to Union, clxix n.,
clxxv; boundaries of, cciv n., ccvi,
ccvii; constitution, ccxliii-iv, cccxlii
n.; settlement, cccxliii n., cccxlvi-
vii, cccxlix, ccccvii; territorial offi-
cials in, cccclxvi.
Ohio Company of Associates, xxxii n.,
cccxlix n., ccclxv; and ordinance of
1787, clxxxvi n., ccxl, ccclxviii-lxxvi,
ccclxxxviii.
INDEX
379
Ohio River, bottom lands, tax rate
for, 59, 176; canals and levees, 327-
28, 329, 332, 340-41; ferries, 71-72,
158, 187, see also Shawneetown:
ferries.
Oklahoma Territory, clxix n., cciv n.,
ccccxxxvii, ccccxxxviii n.
Old Northwest. See Northwest Terri-
tory.
Old Southwest. See Southwest Terri-
tory.
Oldham, Harry, 133.
Oldham, Henry, 297.
Omelveny (Omelvany), Samuel, 236,
274, 290.
Ordinance of 1784, "compacts" of.
ccviii, ccxxxii n., ccli, cclxvii-ix,
ccxcv n.-vi n.; and Confederation
land policy, cclxiv-vii; criticism of,
cclviii-lxiii; democracy of, cclvi-vii,
cclxxxi-ii, cclxxxviii, cccxvi-xx; leg-
islative history, cclxiv seq.,
cclxxxiii-iv, cclxxxv n.; provisions
of, ccliv-vi; revision of, cclxxxvi
seq.; slavery article, clxviii, ccxxxi,
ccxxxiii, cclxxix-lxxx;
on states in federal territory:
population required for admission,
cclxx, cclxxi-ii, cclxxiv-ix; relation
to Union, cccxvi-xvii, ccclxxxii n.;
size of, cclxix n., cclxx-lxxiv;
on territorial laws, ccccii-iv,
ccccxxx-xxxi. See also Franklin,
State of and Ordinance of 1787: and
ordinance of 1784.
Ordinance of 1785, clx n., cclxv-vii,
cccxii n., ccclxiv.
Ordinance of 1787, authorship, ccclxiii
seq., see also Cutler, Manasseh;
Dane, Nathan; and Monroe, James;
compact articles: authorship,
ccclxxx-lxxxiii; nature of, cci n.-ii
n., cxci seq.; provisions of, clxxxi-
iii;
and Constitution, cxxii seq., clxiv,
clxxxi n.-ii n., clxxxvi-viii, cciii
seq., cccxc n.; extension to terri-
tories other than Northwest, cxxxv,
ccx-xiii, ccclxxxvii; on governmen-
tal powers, distribution of, cccclvi-
ix; impairment-of-contracts pro-
vision, clxxxviii, cccxi, cccxii,
cccxxvi, ccclxxx-lxxxi; intestacy
provision, cccxi-xii, ccclxxvii-viii;
legislative history, ccliii, cclxxv,
cclxxxix, ccciv, ccclxiv, ccclxx n.-
lxxi n., ccclxxxvi n., ccclxxxviii;
navigable-rivers provision, ccii n.,
ccxiii-xix, cccx, ccclxxxiii; objec-
tives of framers, ccxciv-viii, cccxxiv
seq., ccclvi-vii; and ordinance of
1784, ccxcv, cccxi-xii, cccxxiv-v,
ccclxxxii, ccclxxxix; reactionary
nature of, cclvii-viii, cclx, cclxxxi-ii,
cccvi-vii, cccxvi seq.; on religious
freedom, ccxx-xxii;
slavery article : clxxxiv-v,
clxxxvi, ccxxxi seq.; courts on,
ccxlvii-viii; and Manasseh Cutler,
ccclxxii-v; and Nathan Dane,
ccclxiv n., ccclxxiii-iv n., ccclxxvii
n.; fugitive-slave provision of,
clxxxvii, ccxxxii, ccxliii-v,
ccclxxvii n.;
on states in Northwest Territory,
cciv-viii, ccxxii, see also States,
new: admission of, equality of;
Roger Taney on, lxxxvii-xc, cxix-
xxii; on territorial delegate to
Congress, ccxci, ccclxxix; on terri-
torial government, cclxxxix-xciii,
ccclxxviii-ix, ccclxxxviii-ix. See also
Governor, territorial; Illinois Coun-
try; Laws, territorial; Legisla-
tures, territorial; and Territories,
relation to federal system.
Oregon Territory, ccccxxxvii n.,
ccccxxxviii n., ccccxlv n.j admis-
sion to Union, clxix n.; and ordi-
nance of 1787, cxxxv n., cciv n.,
ccxi-xii n., ccxiv n.
Orleans Territory, attorney general,
cccclxxii-iii; boundaries, cciv;
courts, xliv, xlv, cccclxx; creation
380
ILLINOIS HISTORICAL COLLECTIONS
of and ordinance of 1787, clxxxiii
n., ccx, ccxi n., ccxii n., ccxxi,
ccclxxxvii n.; governor, cccxcix n.,
ccccliv n., c c c c 1 v , cccclxiii,
cccclxviii; laws,ccccxxviii, ccccxxxi,
ccccxl, ccccxliii n.; legislature,
ccccxxviii n.; slavery in, cxxxv-vi.
Owen, Ezra, 301-2.
-, Dr., 298.
Paine,
Paine, Thomas, cccxxiii, cccxxvii n.,
ccclxxix.
Palmer, Joseph, 110.
Palmyra (111. Terr.), 128, 348, 354.
Pardons and reprieves, 40-41. See
also Governor, territorial: pardon-
ing power.
Parsons, Samuel Holden, as North-
west Territory judge, xlv, ccccvii,
ccccix n., ccccxi; and Ohio Com-
pany, xxxii n., ccciv, ccclxviii,
ccclxxii; on ordinance of 1787,
cxcvi n.; oh the West, cclxiv n.,
cccxliii n.
Paxson, Frederic L., on American
frontier, ccclii-iv; on ordinances of
1784 and 1787, cclix n., cclxxvii,
cccxii n., cccxv n., cccxx n.
Pease, Theodore Calvin, ccxcix n.,
cccx n., ccclxii n., ccccxvi.
Penceneau, Adalaide (Mrs. Augus-
tin), 237.
Penceneau, Augustin, 237.
Pennsylvania, and Articles of Con-
federation and western lands, lxvi
n., lxviii, lxx; as British colony,
ccclvii; constitution, clixn.; courts,
xxii, xxiv n., xl; western settle-
ments of, cccxlvi n., cccxlvii, cccliii
n.
Perjury, 14-16, 25, 65, 189, 275.
Permoli v. First Municipality of
New Orleans, ccxx-xxii.
Perry, Adalaide (Mrs. Jean F. ). See
Penceneau, Adalaide.
Perry, Jean F., 237.
Philadelphia (Pa.), cccxxxvii.
Philippine Islands, cxiii n., cxxvi n.
Physicians, 297-300.
Pickering, Timothy, and Northwest
Territory, plans for settlement,
cclxxxii n., ccclxxii; and ordinance
of 1787, ccclxxiv n., ccclxxv,
ccclxxxii, ccclxxxiii; on John
Cleves Symmes, xxxii n.; on terri-
torial attorney general, cccclxx n.
Pierce, William, clxxxvii n.
Piggott, James, 72.
Piles, William, 235.
Pinckney, Charles, xcii n., xciv n.;
and ordinance of 1787, cxcvi n.,
cclxxvii n., cclxxxvii n., ccxci,
ccclxiv n., ccclxxx n.
Poindexter, George, cccliv n.-v n.
Poll tax, 114, 144.
Pollard's Lessee v. Hagan, ex n.,
cexvi-xviii.
Pomeroy, Joseph, 284.
Poole, W. F., on ordinance of 1787,
ccviii n.-ix n., ecliv n., ccclxvii,
ccclxix, ccclxxiv n., ccclxxxiv n.-v n.
Pope, John, cccclxvi n.
Pope, Nathaniel, ccccxxxiv n., 178-79,
229.
Pope County (111. Terr.), boundaries
and division of, 239, 292-93; courts,
256, 257, 264, 355, 356-57; creation,
217-19; district attorney for, 221;
elections, 218-19, 327; tax collec-
tion, 194.
Powers, John, 254.
Practice and procedure, laws on
(1810), 23; (1812), 52-57, 73-74;
(1S13), 86-87, 94-97; (18U,), 131-32.
135-36, 150-51, 157, 171-72; (lSlo-M),
188-89, 217; (1816-17), 246-47, 250-51,
253-54; (1817-18), 305-7. See also
Courts.
Prairie du Pont (111. Terr.), 237.
Prairie du Rocher (111. Terr.), ccccxix
n.
Prickett, Abraham, 339, 354.
Prim. John, 196.
INDEX
181
Proclamation of 1763, lix, lxii n.,
lxxxi n., ccxcix n., cccxli, ccclvii.
Promissory notes, 253-54.
Property, constitutional protection of,
cxxxix seq.; treaty protection of,
ccxxiii-v; under Virginia-Confed-
eration compacts, ccxxvi-xxxi.
Putnam, Rufus, as Northwest Terri-
tory judge, xxix n., ccxliii n., cccxlix
n.; and Ohio Company, xxxii n.,
ccclxviii; and western settlement,
cclxvi n., cclxxxii n., ccclxxii.
Quaife, Milo M., cccx n., ccclxii n.,
ccclxiii n.
Quakers, 87-88, 211.
Quebec, lviii.
Quebec Act, lxi, lxii n., ccxcix n.
Randall, H. S., cccxx n.
Randolph, Edmund, on territorial ad-
ministration, xxix n.-xxx n.,
cccxci-ii, cccxciii; on territorial
laws, ccccx-xi, ccccxiv n., ccccxviii
n., ccccxli n., ccccxliii n.; on wes-
tern land claims, lxi-ii, lxxix n.
Randolph County (111. Terr.), boun-
daries, ccccxxxiv n., 120-21, 195-98,
215-17; courthouse, 117; courts in,
6, 8, 12, 58, 66, 86, 119-20, 136, 139,
140, 145-46, 149, 256, 257, 264, 355,
356-57, 360; district attorney for,
222; elections, 197, 216; fisheries
and mills in, 301; recorder, 74-75,
117, 323;
sheriff: court duties, 10, 101;
election duties, 318-19; tax duties,
11, 18-19, 51-52, 60, 113.
Ratcliff (Ratliff, Ratliffe), James, 185,
284, 354.
Rattan, Thomas, 312.
Ravel, Antoine, 318.
Recorders, county, 75, 171, 220, 306.
Reid, John, 297.
Relief of individuals, acts for, 63, 127-
28, 187, 203, 237, 309, 322.
Rentfrow, James, 66, 108.
Reprieves. See Pardons and re-
prieves.
Revenue, from fines and forfeitures,
17-18, 28, 29, 30-31, 33, 59, 61, 77,
89, 90, 101, 165, 209-10, 211, 238.
See also Taxation.
Reynolds, John, ccxlvi n.
Rhode Island, lxvi seq., clxxiv n.,
cccxvi n.
Roads, compulsory work on, 270, 310.
Robbery, 25.
Roborts, William, 254.
Rodney, Caesar Augustus, cccxciv n.,
cccclxvi n.
Rodney, Thomas, xxxi n.
Rogers, Samuel, 301.
Roosevelt, Theodore, cccxiv n.
Ross, James, cccxlii, cccxliii n.
Rousseau, Jean Jacques, ccxxiv-v.
St. Clair, Arthur, ability and charac-
ter of, ccclxv, ccccxviii n.; absences
from Northwest Territory, xxix n.-
xxx n.,cccxvi-xvii, cccxlix n.,ccccxii
n.; appointments of, cccclxvi,
cccclxvii, cccclxxi; counties created
by, cccclxi, cccclxxiv-v; on frontier
settlement, cclxx-lxxi, cccxlviii n.;
and government by proclamation,
cccclx-lxi;
on Illinois Country, and ordi-
nance of 1787: land conveyances,
cxcvi n., ccxlviii-ix; slavery,
ccxxxiv, ccxxxvi, ccxxxvii, ccxxxviii,
ccxli-iii;
removed as Northwest Territory
governor, cccxcix n., cccclxxi,
cccclxxv; salary and fees, ccccxxv;
and Winthrop Sargent, xlii, cccxciv,
cccxcvi-viii, ccccxi-xii, ccccxv seq.;
on territorial attorney general,
cccclxix, cccclxxii; on territorial
courts, xxii-iii, xxxiii, xl, xlv; on
territorial governor, powers of,
ccccxlvi, ccccli-lii, cccclxiv; and
territorial judges, xxxi-ii; on terri-
torial laws, ccccv seq., ccccxxi-ii,
382
ILLINOIS HISTORICAL COLLECTIONS
ccccxl-xli, ccccxliii n.; on territorial
legislatures, cccclvii-viii; on terri-
torial system, relation to federal sys-
tem, xliii, cccxc n., cccxcii, cccclx;
travel in Northwest Territory,
xxxiv n.
St. Clair, Arthur, Jr., ccccxxv.
St. Clair, William, xxviii n.
St. Clair County (111. Terr.), boun-
daries and division of, ccccxxxiv
n., 120-21, 195-98, 311, 312-14; courts
in, xxviii n., xxx n., xxxvi-vii,
xxxviii, 6, 8-9, 12, 46-47, 58, 66, 136,
149, 208, 256, 257, 264, 355, 356-57;
district attorney for, 222; elections,
197, 313, 327; mills in, 237; physi-
cians of, 298; seat of, 66-67, 108-10;
sheriff: General Court duties, 10;
tax collection by, 51-52, 85.
St. Louis (Mo.), 72, 247.
Salaries, of territorial officers. See
Fees and salaries.
Salt mines, 157-58.
Saltpeter caves, 302.
Sargent, Winthrop, on frontier set-
tlers, cccxlii, cccliii n., as Missis-
sippi Territory governor, xlv,
ccccvi, ccccxxii-viii, cccclv n.; as
Northwest Territory acting gov-
ernor, xlii, cccxcvi seq., cccclx-lxii;
on Northwest Territory courts and
judges, xxix n., xxx-xxxi, xxxii,
xxxviii; and Ohio Company, ccclxx;
and Arthur St. Clair, cccxcvi-viii,
ccccxi-xii, ccccxv, c c c c x v i i ,
ccccxviii; on territorial attorney
general, cccclxx n.; on territorial
governor, powers of, cccclxiv; and
territorial legislatures, ccccli n.;
travel in Northwest Territory, xxxv
n.
Schouler, James, on ordinances of
1784 and 1787, lxxxviii n., ccix n.-x
n., cccvii n., cccx, cccxx n., cccxxi
n.
Scioto Company, xxxii n., ccclxv,
ccclxvi, ccclxxi n.
Scott, William, Sr., 66.
Scott, William, Jr., 108.
Secretary, territorial, appointment of,
cccxcii n., cccclxiv; duties of, ccxc,
cccxciii-vi, cccxcix-cccc; salary of,
cccxcvi-vii, ccccxxv n.-vi n.
Sedgwick, Theodore, cclxxv.
Separatist movement. See Frontier:
separatism of.
Servants, indentured, cccxl, 92, 158,
227-28. See also Negroes and mu-
lattoes.
Shannon, Thomas, 297.
Shawneetown (111. Terr.), 328-29, 348,
354; banks of, 239-40; courts in, 66,
359; ferries at, 127, 187, 303; gov-
ernment of, 132-35; land office, 144,
297; residents of, cccxliv n.
Shays' Rebellion, cclxxxv, cccxlvii.
Sheriffs, bond given by, 63; compensa-
tion of, 151-52, 194, 270, 276;
duties: arrests made by, 102; as
asssessor, 13; bail taken by, 33, 95-
96, 166, 303-4; bond taken by, 24,
247; convicts indentured by, 227;
court orders executed by, 32, 33,
55, 74, 95, 100-101, 135-36, 140, 164,
165, 199-201, 247, 262; in elections,
70-71, 93, 326-27, see also Towns,
laws on and names of specific coun-
ties, elections in; fines and fees col-
lected by, 17-18, 82, 101, 142, 195,
269; Indian trade law enforced by,
155; juries summoned by, 26, 99,
100, 101, 140, 193, 262, 285-86, 331;
sales for debt held by, 24-25, 307-9 ;
special court sessions, 99, 101; as
tax collector, 13-14, 61-62, 87-88,
114, 115, 159, 173, 174, 176, 211, 269,
314-15, 322-23; tax lists taken by,
12, 69; tax sales held by, 24-25,
61-62, 225; as treasurer, 13, 172,
270;
eligibility of: as county commis-
sioner, 68; as court witness, 189;
office of, 140-41.
Sherman, Roger, ccxcvii n.
INDEX
383
Short, Jacob, 108.
Slade, Charles, 340, 341.
Slavery, in territories. See Dred
Scott case; Negroes and mnlattoes;
and names of specific territories.
Slaves, fugitive, Constitution on,
cxlix seq. ; ordinance of 1787 on,
clxxxvii, ccxxxii, ccxliii-v, ccclxxvii
n.; state and federal laws on, cli n.-
lii n., clxxxii n.-iii n.
Slocumb, C, 284.
Sloo, Thomas, 224, 354.
Smith, G. W., 354.
Smithi Joseph, 326.
Smith, Melancton, cclxxv n., cclxxvii,
ccclxiv n.
Smith, Robert, cccclxxi n.
Smith, William Henry, cccxlix.
Smyth, John C, 235.
Smyth, William, 235.
Social compact, theory of, clxiv, cxcv,
cxcvi n., ccviii.
South Carolina, and Articles of Con-
federation and western lands, lxii
n., lxvi n., lxviii, lxx; land cession,
lxxiv n.
Southwest Territory, governor,
ccccliv n., cccclxii, cccclxviii; judi-
cial system, xlv; North Carolina
compacts on, clxxv n., ccx n.-xi n.,
ccccxxix-xxx; slavery in, and ordi-
nance of 1787, cxxxv n., ccx n.-xi n.,
ccxxxi, ccxxxviii n., ccclxxxvii n.
See also Frontier.
Sovereignty, lxxvi n.-viii n., xc n.-xci
n.
Spain, and frontier separatism,
cccxxx-xxxii; treaties with, lxii,
clxxviii, ccxxvii n.
Sprigg, Elizabeth A. (Mrs. James),
309-10.
Sprigg, James, 309-10.
Sprigg, William, 1.
State, definition of, lvi-vii, ci-ii,
clxviii-lxxviii. See also Confedera-
tion, relation to new Union.
States, new,
admission of: lxxv-vi, xciv seq.,
ccclx-lxi; in Northwest Territory,
cclxix seq., ccxcv n.;
equality of, ciii n., clviii-lxviii,
clxxxii n., ccxiv, ccxviii-xix, ccxxi
n., cccxv-xvi.
Stephenson, Benjamin, 63-64, 117, 339,
354.
Stone, Frederick D., ccix n., ccxli n.,
ccclxix n.
Story, Joseph, cxcvi n., ccclxvii n.,
ccclxxxiii.
Strader v. Graham, cxxx-xxxi, cxxxii.
Street, Joseph Montfort, 133, 354.
Stuart, Alexander, 5.
Stuart, Thomas, 180.
Symmes, John Cleves,
as Northwest Territory judge:
absences of, xxix n.-xxx n., ccccxi
n.; on courts, xxviii n., xxxiv and
nn., xxxviii; on governor, powers
of, cccclii n., cccclix; land specula-
tions of, xxxi-ii, cccclxxiv; on slav-
ery, Illinois Country, ccxliii n.;
and territorial laws, ccccxii n.,
ccccxiii n.
Taney, Roger, lxxix n -lxxx n., lxxxiii,
cxxvi;
on congressional power over ter-
ritories: lxxxvii-xci, cii-iii; consti-
tutional restraints on, cxxxix seq.;
on ordinance of 1787, lxxxvii seq.,
cxix-xxiii, ccxvi seq.; on rules-and-
regulations clause of Constitution,
cv, cviii-ix, cxiii-xxiii, cxxxiii-iv.
Tardiveau, Barthelemi, ccxxxvii, ccxli
n.
Taverns, 33-34, 35.
Tax sales, 224-25. See also Taxation:
of land.
Taxation, of billiard tables, 158-59,
204-5; of cattle, 39, 234; for city
revenue, 133-34, 319-21; collection,
11, 18-19, 51-52, 85-86, 113, 193-94,
198, 234, 265-66, 272, 322-23; of land,
384
ILLINOIS HISTORICAL COLLECTIONS
laws on (1809), 12-14; (1812), 59-63;
(1813), 114-16; (181',), 130, 132;
(1815-16), 212-15; (1816-17), 265,
267-70; (1817-18), 297, 314-15; for
militia exemption, 87-88, 211; poll
tax, 114, 144. See also County com-
missioners; Township commission-
ers; and Treasurers, county.
Tennessee, clx n., clxi, clxix n., cccxvi
n.
Territories, relation to federal sys-
tem, lvi-vii, xlii-iv, cxxviii n., cxliii-
v, ccli, ccxcii-vii, cccxi seq., cccliv-
lxii, ccclxxxix-xc.
Territory of Orleans. See Orleans
Territory.
Texas, lvi, cxxxvii, clxix n., cxci,
cccxvi n.
Thomas, Jesse B., xxvii n., 1, 5.
Thomas, John, 118, 362, 363.
Thomson, Charles, c c c x c, cccxci,
ccccxlvi.
Throgmorton, J. B., 297.
Thwaites, Reuben Gold, ccix n.
Todd, John, 298.
Toulmin, Harry, xxxi n., xxxv n.,
cccxcix n., ccccv.
Towns, laws on, 118-20, 132-35, 145-46,
146-49, 233, 318-21, 340-48.
Township commissioners, 267-70, 322.
Treason, and frontier separatism,
cccxlvi n., cccliv-v; territorial laws
on, xlii-iii, ccccxiv n.-xv n., ccccxxiv.
Treasurers, county, 172-73, 270; du-
ties, 174, 175, 206-7, 210.
Treasurers, territorial, appointment
of, 63; duties, 62, 70, 314; salary, 78,
see also Appropriation acts.
Treaty of 1763, ccxxiii-v.
Treaty of 1783, lx-lxii, lxxix n.,
ccxxiii-v.
Tucker, George, cccxx n.
Tucker, St. George, cxxi n.
Turman, Jacob, 312.
Turner, George, xxxi, ccxliii n., ccxlv
n., ccccxi n., cccclxi; absences from
Northwest Territory, xxix n., xxx
n.; courts held by, xxviii n., xxxiv;
land speculations of, xxxi, xxxii n.;
on powers of territorial officials,
cccclii, cccclviii, cccclix, cccclxii.
Union County (111. Terr.), courts, 324,
355, 356-57; creation, 292-94; elec-
tions, 294, 326; tax collection, 323.
U.S. attorneys, for territories, xliv,
cccclxx, 101-2, 113. See also At-
torneys and Attorneys general, ter-
ritorial.
U.S. attorneys general, on relation of
territorial and federal systems,
xliii, ccclxxxix-xc.
U.S. judges, for territories. See
Judges: territorial.
U.S. land offices, 144-45, 220, 229.
U.S. marshals, for territories, xliv,
101.
U.S. Saline, 127, 157.
U.S. Secretary of State, and territori-
al affairs, cccxci-ii.
U.S. Supreme Court, appeals to, from
territories, xxxiii, xliv; on equality
of new states, clxii-iii, ccxviii-ix;
on ordinance of 1787, cxcvi, ccii n.,
ccxi-xii, ccxvi-xxii; on relation of
territorial and federal systems,
ccxcvii n.; on territorial laws,
clxxi n., ccccxliv-v; on western
lands, state claims to, lxxix n.-lxxx
n. See also Dred Scott case.
Utah Territory, cciv n.; laws of,
ccccxxxvii n., ccccxliii n., ccccxliv,
ccccxlv-vi.
Vance, Thomas, 362.
Van Swearengen, Thomas, SO.
Varnum, James Mitchell, cxcvi n.,
cccxlix n., ccccxi; on Northwest
Territory laws, xlv, ccccvii, ccccix
n.
Venue, change of, 188-89.
Vermont, admission to Union, xciv,
xcviii, clx, clxix n., clxxiv, cccxvi n-
INDEX
385
cccxxxvi; constitution, clix n.,
cclxxxi n., cccxlvi n.
Vice and immorality, 22.
Vincennes (Ind.), ccc, cccxli, ccccxi
n., 247; courts in, xxvii n., xxx n.,
xxxiv n. ; land office, 144, 297.
Vincennes Convention of 1802, ccxii
n.
Virginia, Constitution ratified by,
lvi, cccxvi n.; and County of Illi-
nois, ccxcix n., cccxli;
and western lands: cession of and
Articles of Confederation, lxiii seq.;
early claims to, lix-lxii. See also
Compacts between Confederated
States.
Wabash Navigation Company, 284-89.
Wabash River, 176.
Waddle, Alexander, 66, 108.
Wadsworth, James, ccxcvii n.
Waggoner, John, 295.
Walker, Francis A., ccix n.
Walworth, Reuben Hyde, ccccxliv.
Warehouses, public, 251-53.
Washington, George, on character of
frontier settlers, cclxxxii-iii,
cccxxviii, cccxxxviii-ix; on terri-
torial administration, xxix, xxx n.,
ccxlii, cccxci, cccclxi; and the West,
cclxiii-iv, cclxvi n.-vii n., ccxci-ii,
cccxxvii, ccclvi n.-vii n.
Washington County (111. Terr.),
bridges in, 310-11; courts, 324, 355,
356-57; creation, 312-14; elections,
313-14, 327; tax collection, 323.
Washington County (Northwest
Terr.), xxx n., xxxvii n.
Washington Territory, cciv n.,
ccccxxxvii n., ccccxxxviii n.,
ccccxliii n., ccccxlv nn.
Watauga, cccxlv-vi, cccl n., cccli,
cccciii.
Wayne, Anthony, xxxv n.
Wayne County (Northwest Terr.),
cccxcvi-vii, ccccxxxiii n.
Webster, Daniel, lxxviii n., cli n.; on
constitutional extension to terri-
tories, cxliii-iv, cxlv; on ordinance
of 1787, ccviii, ccix n., cccx.
Weights and measures, 251-53.
Weldon, John, 235.
Wells, Bezaleel, cccxliii n.
West, Cato, cccxcix n., ccccxii n.,
ccccxv n., ccccxxv n.
West, Hezekiah, 198.
West Virginia, clx n., clxix n., cccxvi
n.
Western Reserve, Ixxiii n., lxxxi-iii,
cccl n., cccciii.
Wetherford, Harden M., 298.
White, Benjamin, 185.
White, Leonard, 246, 284.
White County (111. Terr.), courts, 256,
257, 264, 355, 356-57; creation, 185-
86; district attorney for, 221; divi-
sion, 290-91; elections, 186, 249,
291; tax collection, 194.
Whitley, John, Sr., 254.
Whiteside (Whitesides), James, 110.
Whiteside (Whitesides), William B.,
224.
Wilcox, Isaac D., 293.
Wilkinson, James, xxxv n., cccxxxi-
ii, ccclxxxvii n.; as territorial gov-
ernor, cccxciv n., ccccxii n., ccccliii,
cccclxxii-iii.
Williams, John Sharp, cccvii.
Williams, Robert, cccxcix n., ccccxv
n., ccccliv n.-v n.
Willoughby, W. W., Ixxxvi n., lxxxvii.
Wilson, Alexander, 127-28.
Wilson, James (111. Terr.), 297, 354.
Wilson, James (Pa.), cxii n.
Winsor, Justin, on ordinance of 1787,
clxxxv, ccix n., ccxxxviii, ccxl,
ccxlvi, cccxi, cccxix n., ccclxxvi n.,
ccclxxxiv n.
Wirt, William, ciii, ex.
Wisconsin Territory, exxxv n., ccxi n.,
ccxiv n., ccccxxxvii n., ccccliii n.;
boundaries and creation of, clxxi n.,
cciv n., ccvi-vii.
ILLINOIS HISTORICAL COLLECTIONS
Wolf, George, 293.
Wolves, laws on, 47, 159, 191-92, 233-
34.
Wood, Ephraim, 66, 108.
Woodward, Augustus B., cccxcix n.,
ccccvi n.; on territorial governor,
cccxc n., cccclii n., cccclxvi n.,
cccclxvii n.; on territorial laws,
ccccix n., c c c c x v n., ccccxx,
ccccxxxix n., ccccxl n.; on terri-
torial legislatures, ccccxlvii-1.
Woolverton, J. D., 297, 354.
Worthington, Thomas, ccccliii n.
Wyoming Territory, clx n., cciv n..
ecccxxxvii n., ccccxxxviii n.
Yates, Abraham, cccxxv n.
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