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this Ordinance was the fundamental instrument of government for Indiana Territory until the adoption of the Constitution of 1816.
(Old South Leaflets, No. 13.)
AN ORDINANCE FOR THE GOVERNMENT OF THE TERRITORY
OF THE UNITED STATES NORTHWEST OF THE RIVER
Be it ordained by the United States in Congress assembled, That the said territory, for the purposes of temporary government, be one district, subject, however, to be divided into two districts, as future circumstances may, in the opinion of Congress, make it expedient.
Be it ordained by the authority aforesaid, That the estates, both of resident and non-resident proprietors in the said territory, dying intestate, shall descend to, and be distributed among, their children, and the descendants of a deceased child, in equal parts; the descendants of a deceased child or grandchild to take the share of their deceased parent in equal parts among them: And where there shall be no children or descendants, then in equal parts to the next of kin in equal degree; and, among collaterals, the children of a deceased brother or sister of the intestate shall have, in equal parts among them, their deceased parents' share; and there shall, in no case, be a distinction between kindred of the whcle and half-blood; saving, in all cases, to the widow of the intestate her third part of the real estate for life, and one-third part of the personal estate; and this law, relative to descents and dower, shall remain in full force until altered by the legislature of the district. And, until the governor and judges shall adopt laws as hereinafter mentioned, estates in the said territory may be devised or bequeathed by wills in writing, signed and sealed by him or her, in whom the estate may be (being of full age), and attested by three witnesses; and real estates may be conveyed by lease and release, or bargain and sale, signed, sealed, and delivered by the person, being of full age, in whom, the estate may be, and attested by two witnesses, provided, such wills be duly proved, and such conveyances be acknowledged, or the execution thereof duly proved, and be recorded within one year after proper magistrates, courts, and registers shall be appointed for that purpose; and personal property may be transferred by delivery; saving, however to the French and Canadian inhabitants, and other settlers of the Kaskaskias, St. Vincents, and the neighboring 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 property."
16. On July 4, 1800, the territory was divided into two districts for the purposes of temporary government: the division was authorized by the act of May 7, 1800 (Document No. 16). The line of division was drawn from the Ohio river opposite the mouth of the Kentucky river to Fort Recovery and thence north to its intersection with the boundary line between the United States and Canada. The eastern district, roughly coterminous with the present State of Ohio, was known as the Territory Northwest of the Ohio River, and the western district as Indiana Territory. On June 30, 1805, by an act of January 11, 1805 (Document No. 19), Indiana Territory was subdivided by a line drawn east from the southern extremity of Lake Michigan to its intersection with Lake Erie. The northern district thus created was known as Michigan Territory. On March 1, 1809, by an act approved February 3, 1809 (Document No. 25), Indiana Territory was again divided by the Wabash River and a line drawn from Post Vincennes due north to the territorial line between the United States and Canada. The western district was known as Illinois Territory.
Be it ordained by the authority aforesaid, That there shall be appointed, from time to time, by Congress, 18 a governor, whose commission shall continue in force for the term of three years, unless sooner revoked by Congress; he shall reside in the district, and have a freehold estate therein in 1,000 acres of land, while in the exercise of his office.
There shall be appointed, from time to time, by Congress, a secretary, whose commission shall continue in force for four years unless sooner revoked; he shall reside in the district, and have a freehold estate therein in 500 acres of land, while in the exerciseof his office; it shall be his duty to keep and preserve the acts and laws passed by the legislature, and the public records of the district, and the proceedings of the governor in his Executive department; and transmit authentic copies of such acts and proceedings, every six months, to the Secretary of Congress 19 There shall also be appointed a court to consist of three judges, any two of whom to form a court,20 who shall have a common law jurisdiction,21 and reside in the district, and have each therein a freehold estate in 500 acres of land while in the exercise of their offices; and their commissions shall continue in force during good behavior.22
17. This provision was the source of a prolonged controversy in the Terrltory. On the subject of slavery, the Ordinance is self-contradictory. By Article VI, slavery and involuntary servitude are expressly prohibited. But the institution is inferentially recognized by the provisions restricting suffrage to, and basing the apportionment of representatives upon, the number of free male inhabitants'', authorizing the admission of States when the population aggregated “sixty thousand free inhabitants'', and saving to the settlers of Kaskaskias and St. Vincents their ancient laws and customs “relative to the descent and conveyance of property." Judicial and executive construction of these conflicting slavery provisions were to the effect that (1) slave property in the northern part of the Territory was amply protected by Jay's Treaty, but by that alone; (2) negroes held in slavery at the time of the passage of the Ordinance remained slaves; (3) slaves taken to the Northwest Territory or negroes born therein after the passage of the Ordinance, were free. (The best summary of this question is in Dunn's “Indiana", chap. VI.)
18. After the adoption of the Federal Constitution, the President of the United States, by and with the advice and consent of the senate, was authorized to appoint and remove the governor, secretary, judges and all general military officers. Act of August 7, 1789 (Document No. 13).
The governor and judges, or a majority of them, shall adopt and publish in the district such laws of the original States,23 criminal and civil, as may be necessary and best suited to the circumstances of the district, and report them to Congress from time to time: which laws shall be in force in the district until the organization of the General Assembly therein, unless disapproved of by Congress;24 but, afterwards, the legislature shall have authority to alter them as they shall think fit.
The governor, for the time being, shall be commander-inchief of the militia, appoint and commission all officers in the same below the rank of general officers; all general officers shall be appointed and commissioned by Congress.
Previous to the organization of the General Assembly, the governor 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 the magistrates and other civil officers, 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 governor.
For the prevention of crimes and injuries, the laws to be adopted or made shall have force in all parts of the district, and
After the organization of the Federal Government, an act of August 7, 1789 (Document No 13), provided that all official documents should be transmitted to the President of the United States. By the same act, the secretary of the Territory was authorized to act as governor in the event of the death, removal, resignation or necessary absence of the governor.
20. In 1792, any one judge, in the event of the absence of the other two, was authorized to form a court. Act of May 8, 1792 (Document No. 14); but this plan worked badly and by an act of February 24, 1815 (Document No 32), at least two judges were required to form a court.
21. By an act of April 29, 1816, chancery as well as common law powers were conferred on the General Court. (Document No. 33.)
22. By the act of December 18, 1812, the territorial judges were required to reside in the Territory and were forbidden to practice law. (Document No. 29.)
23. The governor and judges were restricted to the adoption of laws of the original States; they had no authority to enact new laws, or, prior to May 8, 1792, to repeal laws once adopted. (Document No. 14.)
24. The first territorial act disapproved by Congress was the statute of limitations adopted on December 28, 1788, and disapproved on May 8, 1792. (Document No. 14.)
for the execution of process, criminal and civil, the governor shall make proper division thereof; and he shall proceed, from time to time, as circumstances may require, to lay out the parts of the district in which the Indian titles shall have been extinguished, into counties and townships, subject, however, to such alterations as may thereafter be made by the legislature.
So soon as there shall be 5,000 free male inhabitants of full age in the district, upon giving proof thereof to the governor, they shall receive authority, with time and place, to elect representatives from their counties or townships to represent them in the General Assembly:25 Provided, That, for every 500 male inhabitants, there shall be one representative,26 and so on progressively with the number of free male inhabitants, shall the right of representation increase, until the number of representatives shall amount to 25; after which the number and proportion of representatives shall be regulated by the legislature:27 Provided, That no person be eligible or qualified to act as a representative unless he shall have been a citizen of one of the United States three years, and be a resident in the district, or unless he shall have resided in the district three years; and, in either case, shall likewise hold in this own right, in fee simple, 200 acres of land within the same:28 Provided, also, That a freehold in 50 acres of land in the district, having been a citizen of one of the States, and being resident in the district, or the like freehold and two years residence in the district, shall be necessary to qualify a man as an elector of a representative.29
The representatives thus elected, shall serve for the term of two years; and, in case of the death of a representative, or removal from office, the governor shall issue a writ to the county or township for which he was a member, to elect another in his stead, to serve for the residue of the term.
The Territory reached the required population in 1798; an election was called by the governor's proclamation; and the legislature thus elected met at Cincinnati on February 4, 1799.
26. There were twenty-two members of the first legislature.
27. By the act of February 27, 1809, the General Assembly was authorized to apportion the representatives and the number was limited to a maximum of 12 and a minimum of 9 until there were 6,000 free male white inhabitants, after which the apportionment was to be regulated by the terms of the Ordinance. (Document No. 26.) By the act of March 4, 1814, the House of Representatives was authorized to apportion the State for the election of legislative councillors. (Document No. 31.)
28. By the act of March 3, 1811, any person holding any office of profit by appointment of the governor, except justices of the peace and militia officers, was rendered ineligible to serve as a representative. (Document No. 28.)
29. The right of suffrage was extended and the electoral qualifications reduced by the acts of February 26, 1808 (Document No 22), and March 3, 1811. (Document No. 28.)
The General Assembly, or Legislature, shall consist of the governor, legislative council, and a house of representatives. The legislative council shall consist of five members, to continue in office five years, unless sooner removed by Congress; any three of whom to be a quorum; and the members of the council shall be nominated and appointed in the following manner, to-wit: As soon as representatives shall be elected, the governor shall appoint a time and place for them to meet together; and, when met, they shall nominate ten persons, residents in the district, and each possessed of a freehold in 500 acres of land, 30 and return their names to Congress; five of whom Congress shall appoint and commission to serve as aforesaid ;31 and, whenever a vacancy shall happen in the council, by death or removal from office, the house of representatives shall nominate two persons, qualified as aforesaid, for each vacancy, and return their names to Congress; one of whom Congress shall appoint and commission for the residue of the term.32 And every five years, four months at least before the expiration of the time of service of the members of council, the said house shall nominate ten persons, qualified as aforesaid, and return their names to Congress; five of whom Congress shall appoint and commission to serve as members of the council five years, unless sooner removed. And the governor, legislative council, and house of representatives, shall have authority to make laws in all cases, for the good government of the district, not repugnant to the principles and articles in this ordinance established and declared. And all bills, having passed by a majority in the house, and by a majority in the council, shall be referred to the governor for his assent; but no bill, or legislative act whatever, shall be of any force without his assent. The governor shall have power to convene, prorogue, and dissolve the General Assembly, when, in his opinion, it shall be expedient.
The governor, judges, legislative council, secretary, and such other officers as Congress shall appoint in the district, shall take an oath or affirmation of fidelity and of office; the governor before the President of Congress, and all other officers before the gover
As soon as a legislature shall be formed in the district, the
30. By the act of March 3, 1811, any person holding any office of profit by appointment of the governor, except justices of the peace and militia officers, was rendered ineligible to serv
erve as a legislative councillor. (Document No. 28.) 31. By an act of February 27, 1809, the qualified voters were authorized to elect the members of the legislative council. (Document No. 26.)
32. By the act of December 15, 1809, vacancies in the office of legislative councillor were filled by a special election called by the Governor. (Document No. 27.)