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THE ORDINANCE OF 1787, ITS ORIGIN
AND
AUTHORSHIP
BY C. B. GALBREATH
The timely adoption and beneficent
influence of this
great charter of American liberty have
been frequently
the theme of the orator, the statesman
and the his-
torian. It is a little remarkable that
the authorship
of this important state paper has been
the subject of
discussion for more than a century and
that it has
engaged the attention of some of the
eminent men of
our Nation. It is generally known to
have entered into
the great debate between Daniel Webster
on one side
and Thomas H. Benton and Robert Hayne
on the other,
but just what form this discussion took
is familiar
only to those who have access to the
debates of Congress
and have taken the time to locate and
read the con-
tribution of Benton and Webster to the
solution of
the problem. And while perhaps their
discussion should
have settled the controversy, like
Congressional debates
on other important themes, it failed to
do so and the
years following the great debate
brought forth different
claimants for the honor of authorship.
' In his Ohio, First Fruits of the
Ordinance of 1787,
Rufus King, grandson of the
Revolutionary statesman
by the same name who contributed in the
Colonial
Congress some ideas for the Ordinance,
writes thus of
the question of its origin:
The authorship of this Ordinance has
lately been made a
subject of curious speculation. It is
certain that some eminent
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112
Ohio Arch. and Hist. Society Publications
men were differing upon it a year before
its passage. But that
Nathan Dane had the chief hand in
forming it as it ultimately
appeared, was never doubted during his
life or that of his con-
temporaries. Mr. Webster asserted it
with emphasis in both
of his speeches in the great debate in
January, 1830, concerning
the public lands. Chief Justice Chase
reiterated it in 1833 in
the historical sketch prefixed to his
compilation of the statutes
of Ohio. Recent discoveries, however,
are supposed to displace
him, and Dr. Cutler is brought forward
as having given the
paper its stamp and character. The
subject seems to have
fallen under that morbid infirmity in
literature which delights in
denying Homer and Shakespeare their
works, and sometimes
have not spared even Holy Writ from its
rage.
The rival claims of authorship are due
to the fact
that the Ordinance was over four years
in the process
of evolution. At the close of the
Revolution many of
the officers and men of the army found
themselves penni-
less with nothing but claims upon the
new Nation that
they had helped to create, as a reward
for their services.
Discontent among them was rife and
Congress was
hard pressed to meet their just demands.
No cash was
in the treasury to pay these
obligations but different
original states had ceded to the
government their claims
to western lands and many of these
officers were willing
and eager to exchange their claims for
the fertile lands
west of the Alleghany Mountains. An
organized move-
ment on the part of officers of the
Revolutionary Army
was at last inaugurated for the purpose
of founding a
new state in the valley of the Ohio.
Timothy Pickering,
Revolutionary soldier and statesman,
was the first, ap-
parently, to draft a form of government
for the proposed
state.
On April 7, 1783 he sent this draft in a letter
to Samuel Hodgdon. In this letter he
said among other
things:
But a new plan is in contemplation -- no
less than forming
a new State westward of the Ohio.
Some of the principal of-
The Ordinance of 1787, its Origin and Authorship 113 |
|
MAP 1. Cessions of Territory of the United States after the Revolution.* Explanation: 1, 1. Acquired by treaty with England. 2, 2. Ceded by the state of Massachusetts. 3. Ceded by the state of Connecticut. 4. Ceded by the state of Virginia; also claimed by New York. 5. Ceded by Virginia. 6. Ceded by Tennessee. 7. Ceded by South Carolina. 8. Ceded by Georgia. 9. Acquired by treaty with Spain. * Adapted from Winsor's Narrative and Cutical History of America Vol. XXXIII -- 8. |
114 Ohio Arch. and Hist. Society
Publications
ficers of the army
are heartily engaged in it. About a week
since the matter was
set on foot, and a plan is digesting for
the purpose. Enclosed
is a rough draft of some propositions
respecting it, which
are generally approved of. They are in the
the hands of General
Huntington and General Putnam for con-
sideration,
amendment, and addition. . . . As soon as the
plan is well
digested, it is intended to lay it before an assembly
of the officers, and
to learn the inclinations of the soldiers. If
it takes, an
application will then be made to Congress for the
grant and all things
depending on them.1
Colonel Pickering's
plan, because it was the first
offered for the
purpose stated, is here given in full:
PROPOSITIONS FOR
SETTLING A NEW STATE BY
SUCH OFFICERS AND
SOLDIERS OF THE FED-
ERAL ARMY AS SHALL
ASSOCIATE FOR THAT
PURPOSE.
i. That the United
States purchase of the natives that
tract of country
which is bounded by Pennsylvania on the east,
the River Ohio on the
south, a meridian line drawn thirty miles
west of the mouth of
the River Scioto on the west -- this
meridian to run from
the Ohio to the Miami River, which runs
into Lake Erie -- and
by this river and Lake Erie on the north.
2. That, in the first
instance, lands be assigned to the army
to fulfill the
engagements of the United States by the resolu-
tions of the 16th of
September, 1776, August 13th and Septem-
ber 30th, 1780, to
wit:
To a
major-general
........................... 1,100 acres
To a
brigadier-general ........................ 850
acres
To a
colonel
................................. 500 acres
To a
lieutenant-colonel ....................... 450
acres
To a
major
.................................. 400 acres
To a captain
................................. 300
acres
To a lieutenant
............................... 200
acres
To an
ensign or cornet ........................ 150 acres
To a non-commissioned
officer and soldier ........ 1,100
acres
To the director of
the military hospitals .......... 850
acres
To chief physician
and purveyor, each .......... 500
acres
To physicians,
surgeons, and apothecary, each ..... 450
acres
To regimental surgeons
and assistants to the pur-
veyor and apothecary,
each ................ 400
acres
To hospital and
regimental surgeons' mates, each.. 300
acres
1 Cutler, Life,
Journals and Correspondence of Manasseh Cutler,
Vol. I, p. 149.
The
Ordinance of 1787, its Origin and Authorship
115
3. That all
associators who shall actually settle in the new
state within
one year after the purchase shall be effected, and
notice given
by Congress or the committee of the associators
that the same
is ready for settlement (such notice to be pub-
lished in the
newspapers of all the United States), shall receive
such
additional quantities of land as to make their respective
rights in the
whole to contain the following number of acres,
to wit:
A
major-general ................................ 2,400 acres
A
brigadier-general ............................ 2,200 acres
A colonel
...................................... 2,000
acres
A lieutenant-colonel ......................... 1,800 acres
A major
..................................... 1,600 acres
A captain
......................................
400 acres
A lieutenant
................................. 1,200 acres
An ensign or
cornet ............................ 1,000 acres
A sergeant
..................................
700 acres
Other
non-commissioned officers and soldiers, each 600 acres
And fifty
acres more for each member of a family besides
the head of
it.
4. That the
rights of the officers in the medical depart-
ment be
increased in like manner on the same condition.
5. That all
officers in the other staff departments, who
shall actually
settle in the new State within the time above
limited, shall
receive rights of land in the proportions last stated,
on an
equitable comparison of their stations with the ranks of
the officers
of the line and the medical staff.
6. That this
increased provision of lands shall extend to
all officers
of the line and staff, and to all non-commissioned
officers and
soldiers, who during the present war have performed
in the whole
three years' service, whether in service or not at
the close of
the war, provided they present their claims and
become actual
settlers in the new State by the time above
limited.
7. These
surplus rights being secured, all the surplus lands
shall be the
common property of the State and disposed of for
the common good; as
for laying out roads, building bridges,
erecting public
buildings, establishing schools and academies,
defraying the
expenses of government, and other public uses.
8. That every
grantee shall have a house built and . . . . . .
acres of land
cleared on his right within . . . . . . years, or the
same shall be
forfeited to the State.
9. That, to
enable the associators to undertake the settle-
ment of the
new State, the United States defray the expenses
116 Ohio Arch. and Hist.
Society Publications
of the march thither, furnish the
necessary utensils of husbandry,
and such live stock as shall be
indispensably requisite for com-
mencing the settlement, and subsistence
for three years, to wit,
one ration of bread and meat per day to
each man, woman, and
child; and to every soldier a suit of
clothes annually; the cost
of these articles to be charged to the
accounts of arrearages due
to the members of the association
respectively.
10. That, for the security of the State
against Indians,
every officer and soldier go armed, the
arms to be furnished by
the United States and charged to the
accounts of arrearages.
Ammunition to be supplied in the same
way.
11. That a Constitution for the new
State be formed by
the members of the association previous
to their commencing
the settlement, two-thirds of the
associators present at a meet-
ing duly notified for that purpose
agreeing therein. The total
exclusion of slavery from the State to
form an essential and
irrevocable part of the Constitution.
12. That
the associators, so assembled, agree on such
general rules as they shall deem
necessary for the prevention
and punishment of crimes, and the
preservation of peace and
good order in the State; to have the
force of laws during the
space of two years, unless an Assembly
of the State, formed
agreeably to the Constitution, shall
sooner repeal them.
13. That the State, so constituted,
shall be admitted into
the confederacy of the United States,
and entitled to all the
benefits of the Union, in common with
the other members
thereof.
14. That, at the above-mentioned meeting
of the asso-
ciators, delegates be chosen to
represent them in the Congress
of the United States, to take their
seats as soon as the new
State shall be erected.
15. That the associators, having borne
together as brethren
the dangers and calamities of war, and
feeling that mutual
friendship which long acquaintance and
common sufferings give
rise to, it being also the obvious
dictate of humanity to supply
the wants of the needy and alleviate the
distresses of the af-
flicted, it shall be an inviolable rule
to take under the immediate
patronage of the State the wives and
children of such as-
sociators who, having settled there,
shall die, or, by cause of
wounds or sickness, be rendered unable
to improve their planta-
tions, or follow their occupations,
during the first twenty-one
years; so that such destitute and
distressed families shall receive
such public aids, as, joined with their
own reasonable exertions,
will maintain them in a manner suitable
to the condition of the
heads of them; especially that the
children, when grown up,
The Ordinance of 1787, its Origin
and Authorship 117
may be on a footing with other children
whose parents, at the
original formation of the State, were in
similar circumstances
with those of the former.2
Early in the year following the
drafting of Colonel
Pickering's plan a committee of the
Continental Con-
gress consisting of Thomas Jefferson of
Virginia, Sam-
uel Chase of Maryland, and David Howell
of Rhode
Island agreed upon a form of government
for the West-
ern Territory. On March 1, 1784, Mr.
Jefferson made
the following report for the committee:
The committee appointed to prepare a
plan for the tem-
porary government of the Western
Territory have agreed to the
following resolutions:
Resolved, That the territory ceded or to be ceded by in-
dividual States to the United States,
whensover the same shall
have been purchased of the Indian
inhabitants, and offered for
sale by the United States, shall be
formed into additional States,
bounded in the following manner, as
nearly as such cessions
will admit: That is to say, northwardly
and southwardly by
parallels of latitude, so that each
State shall comprehend, from
south to north, two degrees of latitude,
beginning to count from
the completion of thirty-one degrees
north of the equator; but
any territory northwardly of the
forty-seventh degree shall make
part of the State next below. And
eastwardly and westwardly
they shall be bounded, those on the
Mississippi by that river on
the one side, and the meridian of the
lowest point of the rapids
of the Ohio on the other; and those
adjoining on the east, by
the same meridian on their western side,
and on the eastern by
the meridian of the western cape of the
mouth of the Great
Kanawha. And the territory eastward of
this last meridian,
between the Ohio, Lake Erie, and
Pennsylvania, shall be one
state.
That the settlers within the territory
so to be purchased
and offered for sale shall, either on
their own petition or on
the order of Congress, receive authority
from them, with ap-
pointments of time and place, for their
free males of full age
to meet together for the purpose of
establishing a temporary
government to adopt the constitution and
laws of any one of
2 Cutler, Life, Journals and
Correspondence of Manasseh Cutler,
Vol. I, pp. 156-159.
118 Ohio Arch. and Hist. Society Publications
these States, so that such laws
nevertheless shall be subject to
alteration by their ordinary
legislature, and to erect, subject to
a like alteration, counties or townships
for the election of mem-
bers of their legislature.
That such temporary government shall
only continue in
force in any State until it shall have
acquired twenty thousand
free inhabitants, when, giving due proof
thereof to Congress,
they shall receive from them authority,
with appointments of
time and place, to call a convention of
representatives to estab-
lish a permanent constitution and
government for themselves.
Provided, That both the temporary and permanent govern-
ments be established on these principles
as their basis:
1. That they shall forever remain a part of the United
States of America.
2. That,
in their persons, property, and territory, they
shall be 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.
3. That they shall be subject to pay a
part of the Fed-
eral debts, contracted or to be
contracted, 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.
4. That their respective governments
shall be in republican
forms, and shall admit no person to be a
citizen who holds any
hereditary title.
5. That, after the year 1800 of the
Christian era, there
shall be neither slavery nor involuntary
servitude in any of the
said States, otherwise than in the
punishment of crimes whereof
the party shall have been duly convicted
to have been personally
guilty.
That whensoever any of the said States
shall have, of free
inhabitants, as many as shall then be in
any one of the least
numerous of the thirteen original
States, such State shall be
admitted by its delegates into the
Congress of the United States,
on an equal footing with the said
original States, after which
the assent of two-thirds of the United
States, in Congress as-
sembled, shall be requisite in all those
cases wherein, by the
confederation, the assent of nine States
is now required, pro-
vided the consent of nine States to such
admission may be ob-
tained according to the eleventh of the
Articles of Confedera-
tion. Until such admission by their
delegates into Congress,
any of the said States, after the
establishment of their tem-
porary government, shall have authority
to keep a sitting mem-
ber in Congress, with a right of
debating but not of voting.
The Ordinance of 1787, its Origin and Authorship 119
That the territory northward of the
forty-fifth degree, that
is to say, of the completion of
forty-five degrees from the
equator, and extending to the Lake of
the Woods, shall be called
Sylvania. That, of the territory under the forty-fifth and forty-
fourth degrees, that which lies westward
of Michigan shall
be called Michigania; and that
which is eastward thereof, within
the peninsula formed by the lakes and
waters of Michigan,
Huron, St. Clair, and Erie, shall be
called Cheronesus, and shall
include any part of the peninsula which
may extend above the
forty-fifth degree. Of the territory
under the forty-third and
forty-second degrees, that to the
westward, through which the
Assenisipi or Rock River runs, shall be
called Assenisipia; and
that to the eastward, in which are the
fountains of the Mus-
kingum, the two Miamis of Ohio, the
Wabash, the Illinois, the
Miami of the Lake, and the Sandusky
Rivers, shall be called
Metropotamia. Of the territory which lies under the forty-first
and fortieth degrees, the western,
through which the river Illi-
nois runs, shall be called Illinoia; that
next adjoining, to the
eastward, Saratoga; and that
between this last and Pennsylvania,
and extending from the Ohio to Lake
Erie, shall be called
Washington. Of the territory which lies under the thirty-ninth
and thirty-eighth degrees, to which
shall be added so much of
the point of land within the fork of the
Ohio and Mississippi
as lies under the thirty-seventh degree,
that to the westward,
within and adjacent to which are the
confluences of the rivers Wa-
bash, Shawnee, Tanisee, Ohio, Illinois,
Mississippi, and Mis-
souri, shall be called Polypotamia; and
that to the eastward,
farther up the Ohio, otherwise called
the Pelisipi, shall be
called Pelisipia.
That all the preceding articles shall be
formed into a
charter of compact; shall be duly
executed by the President of
the United States, in Congress
assembled, under his hand and
the seal of the United States; shall be
promulgated, and shall
stand as fundamental conditions between
the thirteen original
States and these newly described,
unalterable but by the joint
consent of the United States, in
Congress assembled, and of
the particular State within which such
alteration is proposed3
to be made.
This report was recommitted to the
committee and
on the 22nd of March another report was
made that
agreed in the main with the first
report. The paragraph
of the original report containing the
names of the new
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