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THE ORDINANCE OF 1787.
before the President of Congress, and all other officers before the governor. As soon as a legis. lature shall be formed in the district, the council and house assembled, in one room, shall have authority, by joint ballot, to elect a delegate to Congress who shall have a seat in Congress, with a right of debating, but not of voting, during this temporary government.
Sec. 13. And for extending the fundamental principles of civil and religious liberty, which form the basis whereon these republics, their laws and constitutions, are erected; to fix and establish those principles 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 therein, 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:
Sec. 14. It is hereby ordained and declared, by the authority aforesaid, 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, to wit:
Sec. 10. 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.
Sec. 11. 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 nom. inated 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 five hundred acres of land, and return their names to Congress, five of whom Congress shall appoint and commission to serve as aforesaid; 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; 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
as member of the council five years, unless
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.
Sec. 12. The governor, judges, legislative council, secretary, and other such officers as Congress shall appoint in the district, shall take an oath or affirmation of fidelity, and of office; the governor
ARTICLE I. No person, demeaning himself in a peaceable and orderly manner, shall ever be molested on account of his mode of worship, or religious senti. ments, in the said territories.
ARTICLE II. The inhabitants of the said territory shall always be entitled to the benefits of the writ of habeus corpus, and of the trial by jury; of a proportionate representation of the people in the legislature, and of the judicial proceedings according to the course of common law. All persons shall be bailable, unless for capital offences, where the proof shall be evident, or the presumption great. All fines shall be moderate; and no cruel or unjust punishments shall be inflicted. No man shall be deprived of his liberty or property, but by the judgment of his peers, or the law of the land, and should the public exigencies make it necessary, for the common preservation, to take any person's property, or to demand his particular services, full compensation shall be made for the same. And, in the just preservation of rights and property, it is understood and declared, that no law ought ever to be made or to have 404
THE ORDINANCE OF 1787.
fcrce in the said territory, that shall, in any manner whatever, interfere with or affect private con. tracts, or engagements, bona fide, and without fraud previously formed.
to the inhabitants of the said territory as to the citizens of the United States, and those of any other States that may be admitted into the con. federacy, without any tax, impost, or duty there. for,
ARTICLE III. Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged. The utmost good faith shall always be observed towards the Indians; their lands and property shall never be taken from them without their consent; and in their property, rights and liberty they never shall be invaded or disturbed, unless in just and lawful wars authorized by Congress; but laws founded in justice and humanity shall, from time to time, be made, for preventing wrongs being done to them, and for preserving peace and friendship with them.
ARTICLE IV. The said territory, and the States which may be formed therein, shall 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; and to all acts and ordinances of the United States in Congress assembled, conformable thereto. The inhabitants and settlers in the said territory shall 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; and the taxes for paying their proportion shall be laid and levied by the authority and direction of the legislatures of the district, or districts, or new States, as in the original States, within the time agreed upon by the United States in Congress assembled. The legislatures of those districts, or new States, shall never interfere with the primary disposal of the soil by the United States in Congress assembled, nor with any regulations Congress may find necessary for securing title in such soil to the bona fide purchasers. No tax shall be imposed on lands the property of the United States; and in
case shall non-resident proprietors be taxed higher than residents. The navigable waters leading into the Mississippi and Saint Lawrence, and the carrying places between the same, shall be common highways, and forever free, as well
ARTICLE V. There shall be formed in the said territory not less than three nor more than five States; and the boundaries of the States, as soon as Virginia shall alter her act of cession and consent to the same, shall become fixed and established as follows, to wit: The western State, in the said territory, shall be bounded by the Mississippi, the Ohio, and the Wabash Rivers; a direct line drawn from the Wabash and Post Vincents, due north, to the territorial line between the United States and Canada; and by the said territorial line to the Lake of the Woods and Mississippi. The middle State shall be bounded by the said direct line. The Wabash from Post Vincents to the Ohio, by the Ohio, by a direct line drawn due north from the mouth of the Great Miami to the said territorial line, and by the said territorial line. The eastern State shall be bounded by the last-mentioned direct line, the Ohio, Pennsylvania, and the said territorial line: Provided, however, And it is further understood and declared that the boundaries of these three States shall be subject so far to be altered, that, if Congress shall hereafter find it expedient, they shall have author. ity to form one or two States in that part of the said territory which lies north of an east and west line drawn through the southerly bend or extreme of Lake Michigan. And whenever any of the said States shall have sixty thousand free inhabitants therein, such State shall be admitted, by its delegates, into the Congress of the United States, 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: Provided, 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.
ARTICLE VI. There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes, whereof the party shall
AUTHORSHIP OF THE ORDINANCE OF 1787.
have been duly convicted: Provided always, That
Be it ordained by the authority aforesaid, That
may be law.
the resolutions of the 23d of April, 1784, relative to the subject of this ordinance, be, and the same are hereby, repealed, and declared null and void.
Done by the United States, in Congress
assembled, the 13th day of July, in the year of our Lord 1787, and of their sovereignty and independence the twelfth.
II. LETTERS OF DANE AND KING REGARDING AUTHORSHIPS OF ORDINANCE OF 1787. On the 15th of April, 1785, the day after the gitimate and conclusive, that Mr. Dane, acting Grand Committee, of which Mr. King was with his colleague, had accepted and embodied his member, had reported to Congress the Ordinance suggestions in the Ordinance. locating and disposing of the public lands, which Let the chief of these suggestions be briefly became a law on the 20th of May following:- set forth: First, the most important, is that proMr. King thus acknowledges Mr. Pickering's hibiting slavery. Mr. Jefferson's proviso was letter:
prospective; that of Mr. King, immediate; the “Nəw YORK, April 15, 1785. proviso of the Ordinance of 1787 was immediate, “ The best return in my power to make you
and in the identical words offered by Mr. King, 16th for your ingenious communications on the mode March, 1785, except that his proviso reached of disposing of the Western Territory, is to in- to all the territory embraced in Mr. Jefferson's close, for your examination, the form of an Ordi- resolutions of April, 1784, while that of the Ordi. nance, reported to Congress on the subject. nance was restricted, necessarily, perhaps, to the I likewise inclose you the report on
precise territory which that Ordinance was framed a motion for the exclusion of slavery from the new
to govern. In other respects, the language is states. Your ideas on this subject are so just, identical, changing only the words, “shall have that it would be impossible to differ from them." been personally guilty,” as used by Mr. King, Of the report on the exclusion of slavery, here
to “ shall have been duly convicted,” in the Ordi. mentioned, no trace is to be found. It must re
Mr. Dane nowhere appears on the record fer, one would suppose, to the resolution sub- to have made any motion himself in Congress, on mitted by Mr. King himself, on the 16th of
the subject of slavery, and, therefore, finding that March, and committed on that day; but no al.
of Mr. King in the journals, and having it urged lusion in the journal, nor any other than thus upon his attention, doubtless, by Mr. King himcasually in Mr. King's letter to Mr. Pickering,
self, he adopted it as his own. has been found.
Article III. of the fundamental articles, thus But it is certain, that Mr. King did not abate stipulated: “Religion, morality, and knowledge, of his zeal on the subject, and when, in Novem- being necessary to good government, and the hapber, 1785, Nathan Dane became one of his col. piness of mankind, schools, and the means of eduleagues from Massachusetts, and a
cation, shall forever be encouraged.” nance for governing the Western Territory came Of this there is nothing in the Jefferson resoluunder the consideration of Congress, as has al- tions of April, 1784, but the extracts given from ready been related, in September, 1786, and in Mr. Pickering's letters, and the journals of Convarying shapes, occupied its attention, at times, gress, during 1785–6, when the land ordinances through the residue of that year, and through the were under discussion, show how perseveringly, year 1787, until its final adoption, in July, of the and to a certain extent successfully, Mr. King last year, it is on the record of the journal, that labored to obtain, for the purposes of education Mr. King took constant and earnest part in its and of religion, reserved townships in every discussion. If, then, in the Ordinance, as finally range. adopted, shall be found embodied specific prop- And last, and hardly perhaps second in importositions made by Mr. King, and by him only; ance to the first — the Proviso of Freedom and if it shall appear, as now I am about to make kin, indeed, with it, is that proviso, incalculable it appear, that the authorship of the Ordinance in its value as a bond of union; incalculable in was Mr. Dane's, and not Mr. Jefferson's, as has its value to commercial intercourse, and to good been so long claimed, and recently with emphatic neighborhood, which stipulates “ that the navigable and confident argument by Governor Coles, for- waters leading into the Mississippi and the St. merly of Illinois; the deduction would seem le. Lawrence, and the carrying places between the AUTHORSHIP OF THE ORDINANCE OF 1787.
- of a * The Ordinance of 1787, adopted on 13th July.
And now for the conclusive proof that this Ordi. nance was his prepared and drafted by him, and accepted unanimously by Congress, almost without alteration. This proof is in the letter of which the annexed is a full, literal, and exact copy from the original, in my hands:
same shall be common highways, and forever free, as well to the inhabitants of the said terri. tory, as to the citizens of the United States, and those of any other states that may be admitted into the Confederacy, without any tax, impost, or duty therefor.”
This, in the first instance, was due to the farreaching and statesmanlike suggestions of Timothy Pickering, and was introduced into Congress by the joint agency of Virginia and Massachusetts; states which then stood, as, during the war, they had stood, shoulder to shoulder, on so many try. ing occasions. Mr. Pickering, in a letter to Rufus King, of 8th March, 1785, discussing the Ordinance then under the consideration of Congress, for regulating the Western Territory, thus sagaciously writes:
“Water communications in that country will always be in the highest degree interesting to the inhabitants. It seems very necessary to secure the freedom of navigating these, to all the inhabitants of all the states. I hope we shall have no Scheldts in this country.”
So wise a suggestion was not lost upon his cor. respondent, and, accordingly, on the 12th of March, 1786, while the Ordinance "for ascertain. ing the mode of locating and disposing of the public lands in the Western Territory, was un. der consideration, Mr. Grayson, of Virginia, who, as the journals show, acted very frequently in concert with Mr. King, and who separated from his colleagues, and voted aye on Mr. King's AntiSlavery proviso, on 16th March, of the same year, less than two months before, moved this resolution, which was seconded by Mr. King, and adopted:
Resolved, That the navigable waters leading into the Mississippi and the St. Lawrence, and the carrying places between the same be, and are hereby declared to be, common highways, and to be forever free, as well to the inhabitants of said Territory, as to the citizens of the United States, and those of any other state that may be admitted into the Confederation, without any tax, duty, or impost therefor."
This resolution without the change of a letter, is embodied in the Ordinance of 1787; and thus we see that the two important provisos; the one against slavery extension, and the other for the inviolable freedom to all American citizens, in all time, and exempt from all impost or taxation, of the great navigable waters of the Union, designed by God Himself as the highway of nations, originally proposed or promoted by Mr. King; were taken by Mr. Dane from the records of Congress, and introduced into his immortal Ordinance.
NEW YORK, July 16, 1787. TO THE Hon. RUFUS KING, Esq., Philadelphia:
DEAR SIR:- I am obliged to you, for yours of the 11th inst. With pleasure I communicate to you what we are doing in Congress; not so much from a consciousness, that what we do is well done, as from a desire that you may be acquainted with our proceedings. We have been much en. gaged in business for ten or twelve days past, for a part of which we have had eight states. There appears to be a disposition to do business, and the arrival of R. H. Lee is of considerable import
I think his character serves, at least, in some degree, to check the effects of the evil habits, and lax mode of thinking of some of his country.
We have been employed about several objects, the principal of which have been the Government* inclosed, and the Ohio purchasse; the former, you will see, is completed, and the latter will probably be completed to-morrow. We tried one day to patch up M.
's i system of W. government, started new ideas, and committed the whole to Carrington, Dane, R. H, Lee, Smith and Kean. We met several times, and at last agreed on some principles; at least Lee, Smith, and myself. We found ourselves rather pressed. The Ohio Company appeared to purchase a large tract of the federal lands — about six or seven millions of acres — - and 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. All agreed finally to the inclosed plan, except A. Yates. He appeared in this case, as in most others, not to understand the subject at all. I think the number of free inhabitants, sixty thousand, which are requisite for the admission of a new state into the Confederacy, is too small; but, having divided the whole Territory into three states, this number appears to me to be less important. Each state, in the common
course of things, must become important, soon after it shall have that number of inhabitants. The Eastern state of the three, will probably be the first, and more important than the rest, and will no doubt
† These initials refer, possibly, to the plan proposed by Mr. Monroe.
AUTHORSHIP OF THE ORDINANCE OF 1787.
be settled chiefly by Eastern people; and there is, I think, full an equal chance of its adopting Eastern politics. When I drew the Ordinance ( which passed, a few words excepted, as I origi. nally formed it,) I had no idea the states would agree to the sixth article, prohibiting slavery, as only Massachusetts, of the Eastern States, was present, 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. We are in a fair way to fix the terms of our Ohio sale, etc. We have been upon it three days steadily. The magnitude of the purchase makes us very cautious about the terms of it, and the security necessary to insure the per. formance of it. We have directed the Board to examine and report upon Holkar's affair.
Massachusetts Legislature was prorogued the 7th instant, having continued the Tender Act, as it is called, to January, 1788, and having passed no other act of importance, except what, I presume, you have seen respecting the raising of troops, and the power
the governor, to pursue the rebels, etc.* You ask me how I like my new col. leagues. Sedgewick, you know, we all esteem; but I fear he will not make his attendance an ob ject. Thatcher, I am quite unacquainted with. I do not know whether Mr. Otis, at this period of life, and under his misfortunes, will enter with vigor into federal politics. I wish his accounts with the Union had been settled, etc. Nothing more worth particular notice. Your affectionate friend,
N. DANE. Hon. R. KING.
related with entire simplicity. No doubt, therefore, can now be entertained, that Mr. Dane did frame the Ordinance throughout; that it was he who directed the mode of presenting it to the House, and carrying it through all its stages.
Mr. Carrington, of Virginia, named first on the Committee, and, therefore, by usage, its chairman, did not, as appears by this letter, agree with the majority of the Committee, and, therefore, probably declined to report the Ordinance, devolving that duty on Mr. Dane, who stood next on the list, and who was in the majority. This explains, what heretofore has not been understood, how Mr. Dane, the second on the Committee, came to be its reporter; and the almost literal accuracy is hereby established of the account given by Daniel Webster, in his Oration against Hayne, on the Foot resolutions, in the United States Senate, in 1830, that this Ordinance“ was drawn by Nathan Dane, and adopted by Congress, without the slightest alteration." "A few words excepted,” says Mr. Dane, “and the Ordinance passed as I originally formed it."
Having thus established the conclusiveness of the claim of authorship of the Ordinance of 1787, for Nathan Dane, and shown that to Rufus King, and indirectly to Timothy Pickering, belongs the suggestion of the provisos contained in it against slavery, and for aids to religion and knowledge, and for assuring forever the common use, without charge, of the great national highways of the Mississippi, the St. Lawrence, and their tribu. taries, and their carrying places, to all the citizens of the United States; and having, at the same time, by spreading in extenso before the readers of this chapter, both the resolution of Mr. Jefferson, of April, 1784, and the Ordinance of 1787, put it within their reach, to compare these instruments, and thus ascertain how much of one is borrowed from, or is suggested by the other; it may be said, in conclusion, that in endeavoring to assign to each of the prominent actors in this great scene his due merit and responsibility, no desire has been felt nor, it is hoped, manifested, even unconsciously, of magnifying any one at the expense of others. Enough of enduring reputation for each and all, must forever honor the names of Dane, and Jefferson, and Pickering, and King, for the part taken by each in the long, laborious, and eventful struggle, which had so glorious a consummation in the Ordinance, consecrating forever, by one imprescriptible and unchangeable muniment, the very heart of our land to Freedom, Knowledge and Union.
P. S. States present: Massachusetts, New York, New Jersey, Delaware, Virginia, North Carolina, South Carolina, and Georgia. Brother Holten is rather an invalid; is not able to take an active part in business; but I think supports pretty good Eastern politics.
This letter, now for the first time made public, was written, it will be seen, three days only after the passing of the famous Ordinance, before there was any controversy about it, and without consciousness, so far as the modest tenor of the whole letter can witness, of the priceless value of the Act thus perfected. The course of the preparation, discussion, and final adoption of the Ordinance, is
Refers to Shays's rebellion.