CHAPTER V

THE ORDINANCE OF 1787

A VERY important step toward the settling of the West was taken in the passage of the Ordinance which instituted the rectangular system of surveys to which we have already referred. This was adopted only after a long discussion in Congress. The first ordinance "for ascertaining the mode of disposing of the western lands" had required townships to be ten miles square, each mile to be six thousand and eighty-six feet in length, so that the township would consist of one hundred lots of six hundred and fifty acres each. On April 26, 1785, it was proposed that each township be seven miles square with forty-nine sections of six hundred and forty acres in each section; of these, one section, number sixteen, was to be set apart for educational purposes, and section number twenty-nine for the support of religion, but this latter provision was stricken out. A third ordinance was passed on May 20, 1785, and the system set forth in it is that now in force. The ordinance provided that the surveying should be done under government control. By this new system the public lands in the western country were to be divided into townships six miles square. These squares were formed by lines running north and south with others crossing them at right angles. The starting point for the first east and west and north and south lines was on Ohio River directly north of the west end of the line forming the southern boundary of Pennsylvania. The largest division was the township, which was six miles

square, and was divided into thirty-six sections of six hundred and forty acres each. In each township there were, therefore, twenty-three thousand and forty acres, and these lines were run without regard to the quality or even quantity of available land in the township, so that one might be largely taken up with land that was useless or even be covered with water. For this reason when the land companies made large purchases, in some cases running up into millions of acres, generous deductions from the price per acre were made because of the unavailable lands included in the survey. The townships were designated by numbers running north and south, the ranges by numbers running east and west. In this way they could be easily and accurately designated. The "tenth township of the seventeenth range' was a definite and easily found spot.

If the westward movement was to be a permanent success, a government was necessary which would make life and property secure in the new possessions. The Transylvania and Franklin experiments made it clear that ownership by a distant colony was not enough; that the difficulties of communication and the lack of common interests made such a rule undesirable. North of the Ohio the problem was even more difficult because no State could control this vast unsettled territory, which, by the cession of the land claims of the various States, had become the property of the entire nation. It must, therefore, be ruled by the nation until it reached the point where self-government would be advisable.

The Ordinance of 1784 had remained practically a dead letter. The Northwest still continued an organized wilderness with here and there scattered Indian tribes and, in the western part of the territory, a few French settlers who continued to live under their own laws. There were also in the river valleys a few settlements of squatters who lived under scanty and ineffective laws of their own making. They occupied the lands without any title to them. From time to time, in Congress, the question of the settlement

and government of the public lands came up for discussion, but no definite conclusions were reached. Matters of apparently greater importance took up the time of the legislators. Greater interest was, however, taken in the problem after the beginning of 1787. On April 26th of that year a committee, previously appointed, consisting of Johnson, of Connecticut, Pinckney, of South Carolina, Smith, of New York, Dane of Massachusetts, and Henry, of Maryland, reported "an ordinance for the government of the Western Territory." It was debated the next day but it did not come up for the second reading until May 9th. The third reading was to take place on the following day but it was postponed. This ordinance as it stood on the 10th of May was in many important respects different indeed from the one finally reported. The points which make the later ordinance famous are omitted in its predecessor. The general form of government is the same in both. The manner of the appointment of officials is also the same, but there is nothing in the earlier instrument about the rights of conscience, civil and religious liberty and the division of the Northwest Territory into States. It did not contain the article declaring the ordinance a compact between the original States and the people of the Territory, and unalterable, except by common consent. Congress, through inability to assemble a quorum, did no business till July 5th. Four days later, the ordinance was recommitted to a committee made up of Carrington, of Virginia, Dane, of Massachusetts, Lee, of Virginia, Kean, of South Carolina, and Smith, of New York. After two days, Mr. Carrington reported the "Ordinance for the Government of the Territory of the United States Northwest of the River Ohio." It was read a second time on the 12th of July and amended by the addition of the article prohibiting slavery, and on the 13th it was passed by the unanimous vote of all the States represented, the only individual voting against it being Yates, of New York. Why he opposed it has never been clearly explained.

Some interesting questions arise at once when we compare the ordinance which finally passed with that which preceded it. Very important changes occurred in the ordinance before the final passage. What was the occasion of these changes? Why should a Southern committee, or at least a committee the majority of whose members were from the South, add a provision which practically shut out Southern immigration into the new territory by the prohibition of slavery? The best explanation is the influence of the New England parson, Manasseh Cutler. He was agent for the Ohio Company, composed of men who wished to settle in this new land and open up the country to settlers from New England. The plan of government as given in the ordinance when referred to the special committee, early in July, contained many valuable features, but there were omissions that became important when the proposed ordinance was viewed from the New England standpoint. Cutler was in conference with the committee and suggested amendments, though there are no records to show just what these amendments were. Probably those relating to religion and education came from him. The slavery clause presented by a committee containing a majority of Southern men and passed without a dissenting voice from the South is more puzzling; but this anti-slavery clause was consented to only after the application of the ordinance was confined to the lands north of the Ohio, and it was fair to assume that the South would not lose greatly in political power because of the prohibition of slavery in the Northwest Territory, since there could be only five States made of the territory at most, and it was possible that the lands south of the Ohio might be made into as many or more. It was also safe to assume that if slavery was prohibited in the lands north of the river it might be allowed in those to the south.

The following are the main provisions of the Ordinance of 1787: The first clause provided that for the purpose of temporary government the territory northwest of Ohio

River was to be treated as one district with the understanding that it might be divided into two districts when Congress considered such action advisable. Then follows a regulation for the distribution of the estates of the resident or non-resident property holders who die without making a will. They were to be divided amongst the legal heirs in equal parts. The process of bequeathing property by will was made very simple. Anyone of full age might make a will, which became of legal force when attested by three witnesses. Real estate was made conveyable by simple forms and the attestation of only two witnesses was required. The French and Canadian inhabitants were allowed to keep the old laws relating to the descent and conveyance of property. The governor of the Territory was to be appointed by Congress for a term of three years unless his commission was revoked before that time. While governor he

was to live in the district and own a thousand acres of land. Congress was to appoint a secretary who was to hold office for four years. He must reside in the district while holding this office and own five hundred acres of land. Congress was also to appoint a court, consisting of three judges, with the same conditions as to residence and landholding as those regarding the secretary. They were to continue in office during good behavior. The governor and the judges were to adopt such criminal and civil laws of the original States as they considered necessary. These laws, unless disapproved by Congress, were to be binding until a General Assembly was organized. The governor was to be commander-inchief of the militia and had the power to commission the militia officers below the grade of general. Before the General Assembly was organized the governor was authorized to appoint officers in each county or township for the preservation of peace and order, and it was his duty to lay out the districts in which the Indian titles were extinguished into temporary counties and townships.

When there were five thousand free male inhabitants of full age in the district, they were empowered to elect