First Ownership of Ohio Lands

First Ownership of Ohio Lands
By Albion Morris Dyer, A.M.
Baltimore Genealogical Publishing Company 1969
Originally Published New England Historical and Genealogical Register Volumes LXIV and LXV
First Reprinted by the New England Historic Genealogical Society Register Re-Prints, Series A, No. 37 Boston, 1911
Reprinted With Permission Genealogical Publishing Company Baltimore, 1969
Library of Congress Catalog Card Number 69-18897
Made in the United States of America

First Ownership of Ohio Lands

At the end of the war of the American Revolution the Continental Congress came into possession of certain western lands, surrendered by the British Crown to the United States in the treaty signed at Paris on the 3d day of September, 1783. The "crown lands," as they were called, lay back of the heads of the Atlantic rivers and over the mountains, extending westward to the distant Father of Waters. They were known to the colonies as the "back lands" or "back country," and being waste and uncultivated, remote from the ships and barred by many hazards, were not especially desirable in the early settlements. Here wars had raged for unknown centuries, and war was to linger for many years. Two great savage nations had fought from the beginning for this vast wilderness, and three European powers had striven from its discovery to possess it. Finally it was won from the French by the united arms of the King and colonies and joined to Quebec to enter upon a new epoch. Afterwards the crown lands appear in the public councils of the colonies, and that part lying beyond the Ohio River is referred to in the early records as "The Western Territory," a term obviously too broad, since there was western territory on both sides of the river. Under this name it passed for many years, both in and out of Congress; but the official designation of the region was changed in the final action on the famous Ordinance of 1787, where, in the last reading, the title was extended to "The Territory of the United States North-West of the River Ohio." 1 Such is the origin of the Northwest Territory, nursery of states, first extension in area of the United States, first grand resource of the nation, yielding the first considerable item of revenue in the public accounts.

The Northwest Territory passed to the United States indisputably, as part of the lands embraced within the boundary line established by Article III of the Treaty of Paris, reading: "through the middle of the lakes, and along the middle of the river Mississippi, until it shall intersect the northern-most part of the thirty-first degree of north latitude." The English right thus descending to the United States included the relinquished rights of Spain and France, and the King of France had confirmed the transfer by separate treaties giving up forever to the Americans all his claims west of the Mississippi. No other civilized power laid claim to these lands, yet no territory of state ever had more troublesome encumbrances. Four colonies had covered the property with overlapping titles based on vague royal grants and Indian treaties. The territorial land rights of these and other states were advocated by the commissioners of Congress in the negotiation of peace with England, as the basis of a demand for the territory, and the United States was further bound to respect the claims of the states by a specific clause of the articles of confederation. Many tribes of Indians occupied the territory as hereditary owners, and their right of habitation had been confirmed to them by royal proclamation. Relying upon this confirmation a part of the inhabitants had allied themselves with the British cause against the Americans for the retention of their homes and hunting grounds, while the other part of the Indians had remained neutral or assisted the colonies. The hostile Indians were not yet subdued; they were still in armed possession of the frontier, while the friendly tribes could not well be disturbed in their wigwams without serious consequences. Added to this were several minor complications: pledges of bounty land to the military; indeterminate grants within the territory to independent companies; squatter inroads into the bottoms of the Ohio; and British garrisons keeping guard at the outposts supposedly encouraging natives in hostilities, and furnishing aid and comfort to intruders. These conflicting elements were cleared away from the title by good management of Congress, and the United States was able to establish a hold on the Northwest Territory. With great patience, exercising powers assumed but not granted, the American states solved their first political problem, the land issue, quieted the discordant states and gloriously concluded the confederacy. In the course of this business through the assembly, with wonderful enlightenment and in marvellous wisdom of counsels, the title of the Northwest Territory was cleared; the frontier was made safe and the Indians protected within their own property limits under permanent relations of ward-ship; a public domain was created and a rational system of surveying devised to open it; a sinking fund was started, which in time extinguished the whole state and federal debt; and a mode was provided for the extension of settlements on the territory, and for the expansion of the American system of representative government under the flag.

It is not the present purpose of the writer to trace the factors of this first nationalizing movement in American history. The plan in this preliminary sketch is merely to link together events in the course of action which cleared the title to the Northwest Territory, and to follow with more detail the subsequent steps by which Congress established an open doorway into the West. That open door was Ohio. Between the meridians confining this great state the problem of the preparation of a seat in the wilderness for civilization was worked out on heroic lines. These matters are of more than local interest, although the details may not be found in the larger histories.

Years before the crown lands had passed to the United States, four of the states "claiming to the Mississippi or South Sea," assumed sovereign rights of pre‰mption of soil and jurisdiction over the lands comprising the Northwest Territory. Massachusetts and Connecticut rested their title on royal charters, claiming parallel strips of land which cut off the northern part of the Territory. New York claimed by the historic deed of the Six Nations, and her title covered nearly the whole extent of the country south of the lakes. Virginia's proofs were in the royal grants and European treaties, supported by the subsequent military achievement of Clark, and her claims overspread everything from the Canadas far into the South. The claims of the Carolinas and of Georgia were of the same nature, but they fell below the Ohio River. The proofs upon which many if not all of these claims rested had never been tested by legal examination or comparison. In some instances the charters or treaties were of uncertain force and effect. The claims themselves were plainly conflicting. The delineations in the documentary proofs were vague and inaccurate, and the descriptions were based on erroneous geographical knowledge. It was obvious from the first that difficulties would arise in settling these claims, but it was no time in the midst of uncertain war for sister states to dispute over unconquered territory, nor to search for boundaries in a wilderness not yet rid of the savage allies of the King. Moreover the lands were still crown property, and there was no hope of possessing them save "through the common sword, purse and blood of all the colonies united in one common effort." Under the circumstances the claimant states were disposed to rest on their theoretical rights, awaiting the outcome of the Revolution. They worked together in the prosecution of the war without thought of their conflicting claims, and they even engaged to enter into a perpetual union with the lesser colonies, as into a "firm league of friendship," utterly unmindful of the trouble sure to come when boundaries were defined and the limits of jurisdiction determined.

This complacent policy of undisputed, undisturbed ownership of the crown lands by neighborly colonies might have continued unbroken throughout the period of war, but one of the claimants, more "ambitiously grasping for territories" than the others, made presumptions under her charters that destroyed amity and planted discord among the states. Virginia was the direct cause of the fear and distrust, and Maryland led the opposition. Presuming upon the validity of untried proofs of title, and confident of enforcing her indeterminate claims, the Old Dominion entered upon a course of action in the summer of 1776, which, if followed out to its conclusion, would not only exclude the smaller colonies from participation in the benefits of the property but would place all her neighbors, great and small, in position of trespassers. Unexpectedly, in the midst of general alarms of British invasion, with union still in the balance and independence not yet declared, the Virginians, advanced pretensions to jurisdiction and actual possession of all lands and waters of the region between the Chesapeake frontage and the Mississippi River, warning off intruders, and announcing intentions of setting up dependent territorial governments westward of the Alleghany Mountains. Maryland spoke up boldly against these arrogant presumptions of her powerful trans-Potomac neighbor, and so started a controversy which increased the embarrassments of Congress in the conduct of the war, and placed the cause of independence in greatest jeopardy. Maryland held to the demand for complete neutralization of the public lands on principles of fairness, if not of right; and, by constant insistance, at the risk of wrecking the Union, she broke down the plans of Virginia and opened the way for the cessions of all the western country.

The origin of the controversy over the crown lands may be said to be in the adoption of the "Constitution and Form of Government" agreed to in general convention of the delegates and representatives of the several counties and corporations of Virginia, held at the capitol, in the city of Williamsburg, on the 6th of May, 1776. A paragraph of the constitution reads as follows:

The territories contained within the charters erecting the colonies of Maryland, Pennsylvania, North and South Carolina, are hereby ceded, released, and forever confirmed to the people of those colonies respectively, with all the rights of property, jurisdiction and government, and all other rights whatsoever, which might at any time hereafter have been claimed by Virginia, except the free navigation and use of the rivers Potomack and Pocomoke, with the property of the Virginia shore and strands bordering on either of the said rivers, and all improvements which have been or shall be made thereon. The western and northern extent of Virginia shall, in all other respects, stand as fixed by the charter of King James the First, in the year one thousand six hundred and nine, and by public Treaty of Peace between the courts of Great Britain and France in the year one thousand seven hundred and sixty-three; unless, by act of legislature, one or more territories shall hereafter be laid off, and governments established westward of the Allegeny mountains. And no purchase of lands shall be made of the Indian natives, but on behalf of the public, by authority of the general assembly.

Maryland unhesitatingly pronounced this claim in the constitution of Virginia as "injurious to the inhabitants of this state." At the convention of delegates of Maryland in session at Annapolis, October 29, 1776, it was ordered by a vote and resolve that this paragraph of the Virginia Constitution be read, and it was read and spread upon the minutes of the convention. Whereupon it was resolved "That this convention will on tomorrow resolve itself into a committee of the whole; to take the same into consideration." The following day, October 30, according to the order of the day, the objectionable paragraph was considered. After some time spent thereon the committee reported several resolutions by which the convention of the state of Maryland declared unanimously that Virginia had no title to any territory included in the charter granted to the baron of Baltimore, and that the waters of that part of the Chesapeake included in the charter ought to be considered as a common highway free for the people of the bordering states, and they further resolved unanimously:

That it is the opinion of this convention, that the very extensive claim of the state of Virginia to the back lands hath no foundation in justice, and that if the same or any like claim be admitted, the freedom of the smaller states and the liberties of America may be thereby greatly endangered; this convention being firmly persuaded, that if the dominion over these lands should be established by the blood and treasure of the United States, such lands ought to be considered as the common stock, to be parcelled out at proper times into convenient, free and independent governments.

It does not appear in the resolutions what means were contemplated by the convention of Maryland to bring this opinion to bear upon the "arrogance" of her neighbor, but within ten days of the passage of the resolutions, November 10th, to be exact, Maryland delegates were appointed in the convention to represent the state in Congress with expressed power "to concur with the other United States, or a majority or them, in forming a confederation, providing that such confederation, when formed, be not binding upon this state without the assent of the general assembly."

No one would be inclined to doubt that the Maryland delegation was sent to Congress charged with the responsibility of engrafting this principle of national disposition of the public territory upon the fundamental plan of confederacy then in process of formation in Philadelphia. There is no documentary commission to show this and the recorded proceedings of the state and congressional assemblies are so meagre and incomplete that inferences may not always be drawn from them with safety. But the steps taken by the Marylanders are so clear and distinct, both in the home assembly and in the general congress, that they indicate a settled plan to determine all matter of territorial ownership and boundaries before confederating with the claimant colonies.

Limiting the bounds of these colonies which, by charter or proclamation, or under any pretence, are said to extend to the south sea and ascertaining those bounds of any other colony that appears to be indeterminate: Assigning territories for new colonies, either in lands to be thus separated from colonies and hereafter purchased, or obtained by the crown of Great Britain from the Indians, or hereafter to be purchased or obtained from them: Disposing of all such lands for the general benefit of all the United Colonies: Ascertaining boundaries of such new colonies within which forms of government are to be established on principles of liberty.

These clauses were not presented as a part of the committee's substitute. They were the ideas of Mr. Dickinson and were merely "submitted to congress," very likely on his own responsibility. They were probably not considered by Congress and were promptly expunged from the draft. They do not appear again, nor anything like them anywhere in tentative or finished form. It was the settled policy of Congress to avoid the subject of the territories, and this principle prevailed from first to last.

But the confederation discussions in Congress soon offered an opportunity for the Maryland delegation to interject the subject of western lands. The matter came up logically in the course of consideration of the draft of an article of the confederation relating to the powers of Congress. This discussion followed a prolonged debate on fixing a suitable criterion of taxation to meet the costs of war, a feature of the constitution that caused considerable trouble in the succeeding years. In the Franklin draft framed in 1775, public money for war expenses was to be raised by a simple poll tax. But subsesequent drafts elaborated the rule, enlarging its scope, and extending its application to cover back outlays for war expenses. When the article relating to taxation was taken up in its final discussion, October 9, 1777, further differences of opinion developed among the delegates; the population tax was dropped, and a general property tax was proposed. This was burning ground; expenditures of the individual colonies in the early stages of the war before Congress had introduced the general machinery of finance. The debate dragged along through four days' sessions and doubtless something was said that aroused the old grudge and stirred up the spirit of contention. The taxation debate terminated on the 14th of October in agreement on a form of Article VIII as it stands in the finished plan of confederacy, basing taxation on "the value of all land, within each state granted to or surveyed for any person, as such land the buildings and improvements thereon shall be estimated." 3

In the next day's session, October 15, came the land question in the form of resolutions proposing national control of the western territory. The question may have come from the Maryland delegation, but this is not certain. Three resolutions were read in succession presenting the proposition in different forms. The authorship of the resolutions is not stated in the record, but it is probable that one, if not all, was the means adopted by the Marylanders for fulfilling their instructions from the convention issued the year before. The first resolution proposed:

That in order to render the present confederacy firm and perpetual, it is essential that the limits of each respective territorial jurisdiction should be ascertained by the articles of confederation, and therefore, it is recommended to the legislatures of every state to lay before Congress a description of the territorial lands of each of their respective states, and a summary of the grants, treaties and proofs upon which they are claimed or established.

It might be supposed that this reasonable proposition would have gained the support of the smaller colonies whose interests it especially favored, but on this occasion, as throughout the controversy, the smaller states were not united. New Hampshire, Rhode Island, and New Jersey opposed the resolution, while New York, Pennsylvania, and Maryland supported it. Delaware and Georgia were not represented, and the vote stood eight to three. No division is given in the record of vote on the second amendment, and the third received the solitary support of Maryland, the vote of New Jersey being divided. Following are the second and third amendments:

The United States in Congress assembled shall have the sole and exclusive right and power to ascertain and fix the western boundary of such states as claim to the South Sea, and to dispose of all land beyond the boundary so ascertained, for the benefit of the United States.

The United States in Congress assembled shall have the sole and exclusive right and power to ascertain and fix the western boundary of such states as claim to the Mississippi or South Sea, and lay out the land beyond the boundary so ascertained into separate and independent states, from time to time, as the number and circumstances of the people may require. 4

There is nothing in the record to show how these three resolutions were received by Congress, although it appears that they were handled without much "consideration" or discussion. Probably the three amendments were summarily rejected in succession with little or no debate. There was some complaint of this mode of Congressional procedure in the subsequent controversy, and it is recorded afterwards, relative to similar propositions, that "they involve questions, the discussion of which was declined on mature consideration when the articles of confederation were debated." 5 Virginia pointed out the inconsistency of this doctrine with the principles upon which the boundaries of the United States were described in an ultimatum in the terms of peace soon afterwards placed in negotiation with England:

The United States could hold no territory but in right of some one individual state in the Union. Any argument fairly urged to prove that any particular tract of country, within the limits claimed by Congress on behalf of the United States, is not a part of the chartered territory of some one of them, must militate with equal force against the right of the United States in general; and tend to prove such tract of country (if northwest of the Ohio river) part of the British province of Canada. 6

It would be idle to conjecture as to the effect of those resolutions had they gone into the plan of confederation. It might be that the confines of the United States would have been at the mountains, as Virginia suggested would be the case, and the region between the Great Lakes and the Ohio might have remained until now a part of the Dominion of Canada. The only appreciable effect of their introduction at this time was in the action which followed. The larger states took alarm from this attack upon their cherished rights, and they voted to insert in the draft a clause which does not appear in any earlier form, an addition to Article IX, reading: "No state shall be deprived of territory for the benefit of the United States." The claimant states placed this in the law of the confederacy on October 27, by which they alarmed others of the smaller colonies and laid the basis for subsequent loss of territory they sought to safeguard.

The plan of confederation as finally agreed upon in Congress, Saturday November 15, 1777, contained no reference to vacant land, or western boundaries except the saving clause introduced at the last to satisfy the larger states. No time was lost in placing the plan before the thirteen states for conclusion. The articles of confederation were revised and arranged, and three hundred copies were printed. A circular letter addressed to the states to accompany the articles of confederation was prepared by a committee appointed to the task. Thirteen copies of the letter were made out and signed by the president of Congress, and on Monday, November 17, these two documents were transmitted to the executive authorities of the several states. The letter of address is a dignified plea to hasten the conclusion of confederation. The articles were earnestly recommended to the immediate and dispassionate attention of the legislatures, with expressions of appology for expecting that any plan should exactly correspond with the maxims and political views of every particular state, regret at the time which had elapsed in preparing the plan for consideration, and so-licitude as to the time which must be necessarily spent before it can be ratified. The legislatures were recommended "to invest their delegates with powers to subscribe articles of confederation, and to attend congress for that purpose on or before the 10th day of March next."

The states received the plan and address early in December, in ample time for the necessary action in the assemblies before the day set for ratification in Congress. But it does not seem that they were especially affected by the urgent plea for haste. Virginia alone made prompt reply. The general assembly of that state complied immediately with all recommendations of the address. Without stopping for debate, and without division, each house of the assembly approved the articles and ratified them with resolutions calling for speedy conclusion of confederation. The enabling act of Virginia bears date of December 16, 1777, 7 scarce a month from the date of the address. Surely the Old Dominion was well satisfied with the plan. Other states were not so well pleased. They were all as anxious for confederacy and union as a means of ending the war, but they were not in a hurry to ratify. Most of the states found fault with the plan. They framed objections calling for amendments, and forwarded them to their delegates for presentation to Congress. Several states waited long for changes to be made. The responses of the legislatures show the extent and nature of the dissatisfaction with the terms proposed for confederation.

The date set for ratification, March 10, 1778, was permitted to pass by without the ceremony called for in the programme. Not enough delegates had received the expected powers and instructions, called for in the letter of address, to justify an attempt to proceed with confederation, and so matters drifted along while the states deliberated. Information travelled slowly then and people were not so ready to spread news. Georgia, for example, took action on the plan of confederation in February, and the result of the action was not reported until the 23d of July. But it must have been known among the delegates that objections had been raised in many of the legislatures against the plan proposed, and no doubt much anxiety was felt as to the fate of the confederacy.

Congress, then in session at Yorktown, was not disposed to begin the canvass of accumulating objections until forced into considering them by the sudden demands of the Maryland delegation. Fresh instructions just received from home called for immediate notice. The general assembly of Maryland on Saturday the 20th of June, 1778, resolved:

That the delegates from this state to Congress consider themselves bound by the instructions given in October session last, and that they endeavor to procure from Congress an explicit answer to the propositions therein contained; but that they do not at any time consider themselves at liberty to ratify or confirm any confederation of perpetual friendship and union, until they have communicated such answer to the general assembly of this state and shall receive their express authority to do so.

The next Monday, June 22, after the issue of these explicit instructions, Congress having proceeded to consider the objections to the articles of confederation, the delegates from Maryland read to Congress these instructions, and moved "that the objections from the state of Maryland be immediately taken up and considered by congress, that the delegates from Maryland may transmit to that state, with all possible despatch, the determination of congress on these objections." The motion being put and resolved in the affirmative, three objections of Maryland were read and voted upon out of the regular order of roll call, which should have begun with New Hampshire.

The canvas of returns from the legislatures of the thirteen states as recorded in the Journals of Congress under date of June 22 to 26, 1778, shows only three states approving of the articles "as they now stand," New Hampshire, New York, and Virginia. A fourth had likewise approved, but the official report from North Carolina did not arrive until after the canvas was concluded. Objections had been received by delegates of eight states and Delaware was still to be heard from. South Carolina sent twenty-three alterations, and Rhode Island, "having had the articles repeatedly read, and having maturely weighed and most seriously deliberated upon them as their importance deserves," sent along three amendments, with powers to her delegates "to accede to and sign the articles provided they be acceded to by eight of the other states." The objections were numerous and scattering. They were mostly in the form of verbal changes of little, if any, interest to-day. 8 The more important criticism came from four states in the form of a presentment against the land policy of the claimant states.

The method of consideration applied by Congress to these objections deserves a passing notice. According to the records in the Journals of Congress parts of three days in the midst of other business served to dispose of them all. Very little time was given to the separate objections. The roll was called geographically, except that Maryland came first, and the objections from the state called were read by the delegates. Sometimes there was debate, but debate was slow. One elaborate series of objections pertaining to widely different features of the confederation were grouped into one motion and cast out by a single division. Another set of belated objections were, apparently, disregarded entirely. In this fashion the business was rushed through, and on the third day Congress was able to report that the articles, "after mature deliberation, had been adopted, without amendment."

Two of the objections filed by the Maryland delegates do not concern this inquiry as they pertain to other matters, but the third brought up the contention on the land question in still another form. By this an explanation was called for of the obnoxious safety clause in Article IX. The Maryland assembly expressed dissatisfaction with this clause and demanded the addition of the following:

The United States in Congress assembled shall have the power to appoint commissioners, who shall be fully authorized and empowered to ascertain and restrict the boundaries of such of the confederated states which claim to extend to the river Mississippi, or South Sea.

This amendment received attention during two sessions of Congress, and although it failed of passage the solitary vote of Maryland, recorded in the former division, was recruited by the support of Rhode Island, New Jersey, Pennsylvania, and Delaware. Had New Hampshire stood by her weaker sisters on this occasion the amendment would have carried, as North Carolina was not then represented in Congress and New York's vote was divided.

Rhode Island and New Jersey both sent objection to the clause "no state shall be deprived of territory for the benefit of the United States," based on the theory that this inhibition might be construed as intending the crown lands, which indeed was the very purpose of the insertion. 9 The legislature of Rhode Island asked for an explanatory addition to the clause to prevent such construction, in these words:

Provided, nevertheless, that all lands within those states, the property of which before the present war was vested in the crown of Great Britain, or out of which revenues from quit-rents arise, payable to the said crown, shall be decmed, taken, and considered, as the property of the 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.

The New Jersey objections appear in a Representation of the Legislative Council and General Assembly of that state, an impressive document consisting of a series of remarks arranged in nine numbered paragraphs, each item a criticism of some point in the confederation, with an alteration suggested, and argument supporting the proposed changes. The New Jersey criticisms cover a wide range of ideas, but two of the paragraphs deal with land matters. The first suggests that the boundaries and limits of each state ought to be fully and finally fixed and made known as a means of preventing jealousies and controversies and promoting harmony and confidence among the states. If this could not be done before the proposal of confederation, the principles ought to be established beforehand upon which the determination might be conducted at an early period, not exceeding five years from the final ratification of the confederation. The New Jersey reference to the meaning of "territory" in the prohibitive clause inquires

Whether we are to understand that by territory is intended any land, the property of which was heretofore vested in the crown of Great Britain, or that no mention of such land is made in the confederation, we are constrained to observe, that the present war, as we always apprehended, was undertaken for the general defence and interest of the confederating colonies, now the United States. It was ever the confident expectation of this state, that the benefits derived from a successful contest were to be general and proportionate; and that the property of the common enemy, falling in consequence of a prosperous issue of the war, would belong to the United States, and be appropriated to their use. We are therefore greatly disappointed in finding no provision made in the confederation for empowering the Congress to dispose of such property, but especially the vacant and impatented lands, commonly called the crown lands, for defraying the expenses of the war, and for such other publick and general purposes. The jurisdiction ought in every instance to belong to the respective states within the charter or determined limits of which such lands may be seated; but reason and justice must decide, that the property which existed in the crown of Great Britain, previous to the present revolution, ought now to belong to the Congress, in trust for the use and benefit of the United States. They have fought and bled for it in proportion to their respective abilities; and therefore the reward ought not to be predilectionally distributed. Shall such states as are shut out by situation from availing themselves of the least advantage from this quarter, be left to sink under an enormous debt, while others are enabled, in a short period, to replace all their expenditures from the hard earnings of the whole confederacy?

The dignified form of the New Jersey objections, to say nothing of their serious import, deserved from Congress the most careful consideration of the several points raised against the articles of confederation; but the document, apparently, received even less attention than was accorded to others of much scantier significance. The representation was adopted at Trenton on the 16th of June. It was laid before Congress in the canvas of objections on Tuesday, June 23, and taken into consideration on Thursday. Upon the reading of the paper it was moved "that the several articles in the confederation referred to in the foregoing representation be so far reconsidered as to admit the purport and meaning of the additions, alterations and amendments proposed." There was no discussion of the motion nor of the merits of the separate items. They were not debated seriatim as in the case of other states. The entire set of nine objections was cast out by a single blanket motion to reconsider, on which the record stands: "Question put, Passed in the negative. Three ayes, six noes, one divided."

This rapid manner of disposing of objections brought the congressional canvas of returns from the thirteen states to a close by night of the third session, 10 but the confederation was not concluded with the expedition planned. Not one objection had been sustained. The plan as finished in November was enacted without change in June. All that remained was ratification by subscriptions in Congress to the Act of Confederation at the hands of the authorized delegates of the respective states. Preparations were made speedily for accomplishing this in a ceremonious manner. The 4th of July was approaching, and Congress had ordered adjournment to Philadelphia, where on the sabbath day they were to appear in a body in church, and participate in the celebration planned for the second anniversary of the birth of independence. Confederation might well be concluded on the natal day. But there were slips in the programme. The act of confederation and form of ratificatian agreed upon were elegantly engrossed on a roll of parchment, with spaces ruled in double column for signatures of states in geographical order. The parchment "was laid before congress Saturday, June 27, but the same upon examination being found incorrect, it was ordered that another copy be made, and laid before congress on or before the 4th of July next." In the confusion of adjournment, or for other reason, the day passed without the subscriptions, and the signatures were not called for until the 9th day of July, in the third year of independence.

But these were merely temporary interruptions; the serious difficulty developed at the ceremony of subscription. Eight states ratified the act of confederation, spaces for five state signatures remained vacant on the roll. Delegates of four states waived objections, disregarding specific instructions from their constituency, and signed the engrossment. North Carolina and Georgia, whose legislatures had voted to ratify, did not sign the roll as "they were not at this time represented in congress." When called upon to endorse the parchment as others had done "the delegates from the state of New Jersey, Delaware, and Maryland informed congress that they had not yet received powers to ratify and sign." 11 So the ceremony failed, and confederation was doomed to wait while Congress took measures for persuading the refractory legislatures. A committee was ordered to prepare a circular letter to the backward states, "informing them how many and what states have already ratified, and desiring that they will authorize their delegates to ratify the confederation with all convenient despatch."

The second appeal of congress, issued under date of July 10, 1778, repeats the plea of immediate necessity of confederation, so earnestly employed in the November address. "Influenced by considerations so powerful, and duly weighing the difficulties . . . Congress have, after mature deliberation, agreed to adopt without amendments the confederation transmitted to the several states for their approbation. The states of New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, Pennsylvania, Virginia, North Carolina 12 and South Carolina, have ratified the same, and it remains only with your state to conclude the glorious compact . . . . trusting to future deliberations to make such alterations and amendments, as experience may show to be expedient and just."

Two of the remaining states complied with this request, but not without considerable reluctance. New Jersey acted November 20, and Delaware on the 1st of February following. Coupled with the official instructions issued to the delegates of these states were resolutions of the respective legislatures, in almost the same words, disapproving of the articles of confederation "as unequal and disadvantageous to this state;" declaring "the objections lately stated and sent to the general congress are still viewed as just and reasonable, and sundry of them as of the most essential moment to the welfare and happiness of the good people of the state;" and protesting that they ratified "under the full conviction of the present necessity of acceding to the confederacy proposed, and of postponing every separate and detatched state interest to the general good of the union, and, moreover, in firm reliance that the candour and justice of the several states, will in due time, remove as far as possible, the inequalities which now subsist."

The objections mentioned in the Delaware protest were adopted by the legislature a few days previous to the passage of the powers of ratification. It was then rather late for objections, but Delaware had been slow in dealing with the plan, which was not taken up by the council at Dover until the 3d of December, 1778. At that time the second call for speedy ratification was also in hand. Still there was delay to accommodate the Senate which "was desirous of knowing the sentiments of the people on a subject so materially affecting their interests." Objections were formulated and adopted, and a few days later the resolutions of ratification were passed. Thus there were two sets of resolutions on confederation forwarded as credentials to the delegates of Delaware; first, the objections of January 28, which were directed against the land policy on the same basis as the Maryland objections, and second, the powers for ratification issued to the delegates with the protest of February 1. The presentation of the Delaware credentials caused a stir in Congress. The powers for ratification were lodged with the secretary February 16, 1779, and the roll was signed for Delaware on February 22d. The following day the delegate of Delaware laid before congress the objections to the articles of confederation declaring in favor of absolute national control of the western limits of the claimant states; and national disposition of the extensive tract of country which lies to the westward of the frontier of the United States. On which it was

Resolved, That the paper laid before congress by the delegate of Delaware and read, be filed; provided, that it shall never be considered as admitting any claim by the same set up or intended to be set up. 13

Meanwhile the signatory states waited with more or less impatience for the disaffected ones to close the circle of confederacy and put an end to the growing embarrassment of congress. The open discord among the states and the uncertainity of their confederating were regarded as the principal cause of the prolonging of the war. Most of the blame for the delay rested on Maryland, but Virginia, whose pretentions had excited the first criticism, did not escape censure. Agitation of the land question gave the Virginians much concern, as the delay in confederating interfered with certain plans of the commonwealth respecting the back lands. Already the Old Dominion had moved to occupy their ultra-montane claims. At this critical moment large grants of lands were being made by the Virginia Assembly to speculators, and wide areas in the disputed territory designated for distribution exclusively to the Virginia soldiery. Whilst the eleventh state was still pondering on this point of union, and without the slightest consideration for the rights of other claimants, Virginia assumed sole possession of everything westward of the Ohio River, and passed an act extending the dominion of the commonwealth, in setting up a sub-administration across the Ohio, to the uncertain limits of the illinois. Further delay in the Union of states might imperil these ambitious enterprises. The time has come to force the obstructing members to the terms of confederation. Thus conceiving, the Virginia assembly issued instructions to their delegates in Congress to propose a partial confederacy "of so many states as shall be willing." Such a scheme seemed certain to bring in the procrastinators, or it might, perchance, result in the dissolution of the last refractory state, and the possible distribution of the Calvert domain among the abutting colonies. This act passed the assembly, December 18, 1778, but it was not made public in Congress for several months. It was followed, April 7, after Delaware's ratification, by powers issued to the Connecticut delegates to accede to a confederation of twelve states, omitting Maryland. This action also was kept from the records, although known unofficially. Evidently it was the plan to bring these acts into operation at a favorable moment. But Maryland was prepared. Early in December she took action that turned public approval in her favor, shifted the burden of blame to Virginia, and made the first advance towards surrender of the territorial land claim beyond the Ohio.

Tne fears of Maryland respecting the use that might be made of the vacant land, if the claimant states were not restrained by provisions in the articles of confederation, apply directly to the plans of her neighbor state to seize and hold the whole extent of disputed territory. Virginia laid foundation for the broadest expansion of her dominion, in the beginning, at the moment of transition from the condition of a royal British colony to that of a free American commonwealth, in the assumption of the second charter of King James, issued to the "Virginia" of 1609, as the basis of her rights in America. A number of events in the latter history of the American colonies tend to establish the west boundary line of the claimants' territory at the "sources of the rivers which fall into the Atlantic ocean from the west to the northwest," but Virginia clung to the doctrine of the hinterland as the foundation of her domain, and steadfastly pushed her borders westward; first, over the greater mountains, upon the western waters, and thence across the river to the uttermost reaches of the Illinois, until, in the land cession of 1783, she was forced to drop the prize. The claims in the Virginia constitution, quoted on an earlier page as the initial cause of alarm in the colonies, made the extent of the new-formed commonwealth to stand as fixed in this charter, modified by the more recent limitation of the French Treaty; comprehending

All that space and circuit of land lying from the sea-coast, two hundred miles each way from the Point or Cape Comfort, up into the land throughout from sea to sea [Mississippi River], west and northwest.

Provisions were made in the constitutional paragraph releasing, for prudential reasons, the portions of territory on the eastern waters which were actually covered by her sister colonies, but there were no allowances on the western waters for the claims of other states whose charter limits fall within the area blocked out in the Stuart grant. Virginia had no intention of recognizing the right of any other colony in that direction. It was the latent purpose of Virginia to enter and occupy this reserved domain of the crown, and to have and to hold the soil exclusively until, peopled by her soldiery, "one or more territories, by act of legislature, shall hereafter be laid off, and governments established, westward of the Allegany mountains. 14"

The objection heard in Congress respecting the territorial land claims was general and not particular, and no protest against individual state claims was made until towards the last. Maryland made her objections felt in the matter of controlling the Chesapeake waters by an early conference with Virginia and a joint commission, to consider of the most proper means to adjust and confirm the right of each, to the use and navigation of, and jurisdiction over the Bay of Chesapeake, and the rivers Potomac and Pocomoke.

But no state made local challenge of the proposed rule of the commonwealth of Virginia on the western waters.

The first mark of the purpose of Virginia to occupy the back country is in the prohibitive clause appendant to the description of the charter limits of the commonwealth enacted May 6, 1776:

No purchase of lands shall be made of the Indian nations, but in behalf of the public, by authority of the general assembly.

It was the well established policy of the British crown and colonies that the title of an Indian was not in itself sufficient to convey the right of property, 15 but occasion called for the early application of this principle in Virginia, with respect to the disputed lands, while the convention was still in session, in the following form:

Whereas, divers petitions from the inhabitants on the western frontiers have been presented to this convention, complaining of exorbitant demands made on them for lands claimed by persons pretending to derive title from Indian deeds and purchases.

Resolved, That all persons actually settled on any of the said lands ought to hold the same, without paying any pecuniary or other consideration whatever to any private person or persons, until the said petitions, as well as the validity of the titles under such Indian deeds and purchases, shall have been considered and determined on by the legislature of this country; and that all persons who are now actually settled on any unlocated or unappropriated lands in Virginia, to which there is no other just claim, shall have the pre-emption or preference, in the grant of such lands.

Resolved, That no purchases of lands within the chartered limits of Virginia, shall be made, under any pretense whatever, from any Indian tribe or nation, without the approbation of the Virginia legislature.

The petitioners referred to in these resolutions are "inhabitants of that part of America called Transylvania," from whom one petition is recorded in the Journal of the Convention under date of May 18. They complain of the unjust and arbitrary proceedings of Richard Henderson and Company, the proprietors of that country in which the petitioners had made settlements under expectation of undoubted title. They doubt the validity of the purchase those proprietors have made of the Cherokees, "the only title they set up to the lands for which they demand such exorbitant sums of money," as it was in conflict with a deed which they had lately seen, executed at Fort Sta??wix, in which the confederated Indians of the Six Nations "declared the Cherokee [Tennessee] river to be their true boundary with the southward Indians." As they had purchased from the Henderson Company they asked for relief from the convention of Virginia, or an espousal of their claim in Congress as the cause of the colony.

The proprietors of the Transylvania purchase answered these petitions in a memorial which appears at great length in the convention proceedings of June 15, in which they seek to clear themselves of the heavy charges of injustice, exorbitant, and arbitrary measures. They deny also certain insinuations "of setting themselves up as absolute proprietors of an independent province; and of attempting to dismember the colony by sending delegates or a memorial to Congress." They claim also priority of title to the convention and the commonwealth of Virginia, arguing that a declaration of independence cannot alter the tenure of estates, or a change of government interfere with the rights of private individuals to hold property; and they demand a hearing of the matters charged in the petitions.


They conceive that by the convention resolve of the 24th of June last, Virginia had laid a foundation for calling in question the title of the memorialists to the lands aforesaid; if the title of the memorialists should be called into discussion, conscious of the equity and validity of their right, they shall never hesitate to submit it to a proper judicature, nor to defend it in the ordinary course of justice; that, under these circumstances, they confide the legislature of Virginia will not, by any act or proceeding whatever, impeach or prejudice their title, so well established, on the principles of reason, equity, and sound policy.

The memorial, when read, was referred to the committee of the whole house upon the state of the commonwealth, the same committee that had charge of the Henderson case. The matter dragged along through the third session, during which the Henderson case was appointed to a hearing and postponed. It must not be supposed that the Virginia general assembly mistook the gravity of the situation. On the last day of the third session action came of a significant character. The record for January 24, 1778, reads:

"The clerk of the house was ordered to transmit a copy of the several papers filed in the office relating to the claim of Richard Henderson and Company and the Indiana Company, to George Mason and Thomas Jefferson, Esquires."

This was done, no doubt, to fortify the assembly with opinions; and on the same day these resolutions were agreed to:

Whereas, it is of the greatest importance to this commonwealth, that the waste and unappropriated lands to which no person having just claim should be disposed of, for the purpose of creating a sinking fund, in aid of the taxes for discharging the public debt, and to the end that the claims to unpatented lands, under the former or present government, may not in the meantime be increased or strengthened.

Resolved, that every entry, with the survey hereafter made in the country upon the western waters under any pretense or title whatsoever, until the land office shall be established and the manner and terms of granting waste and un-??appropriated lands, shall be void and of no effect; and that no persons hereafter settling in the country upon the said western waters, shall be entitled to any land or pre-emption of land for such settlement, without paying for the same such consideration as shall be hereafter ascertained by the general assembly, so as no family be entitled to more than 400 acres.

Resolved, That all persons claiming any unpatented lands on the said western waters by order of council, shall lay the same before the general assembly on or before the 20th day of their next session, and be at liberty in the mean time to take the depositions of any witnesses they may choose, to examine such claims, giving reasonable notice thereof to the person appointed by the governor and council to attend such examination in the county, on behalf of the commonwealth, in case such person shall be appointed.

Finally, after two years, the Henderson case was heard in the Virginia assembly. The hearing was conducted with dignity, with "the Senate invited to take seats in the House, while the memorials and papers were read and arguments heard at the bar." Richard Henderson, chief promotor of Transylvania, appeared in person. He asked for a separate court of judicature, and proposed as the issue the simple question "whether the title obtained by the claimants from the Cherokees was sufficient to convey the right of property." They argued for the justice of the Cherokee claim as against the claim of the Six United Nations, citing the constant and perpetual occupancy by the Cherokees and the recognition by the Virginia colonial government in treaties and purchases made of the Cherokee nation. 17 Conclusion was reached in the case November 4, 1778. The Henderson purchase was declared void, and the doctrine of invalidity of Indian titles reaffirmed in this form:

Resolved, That all purchases of lands made or to be made of the Indians within the chartered boundaries of this commonwealth, as described by the constitution and form of Government, by any private person not authorized by public authority is void.

Compensation was to be allowed to the claimants "for their great expense in making the purchases and in settling the lands, by which this commonwealth are very like to receive great advantage, by increasing its inhabitants and establishing a barrier against the Indians"; and a commission was ordered, to consider "what compensation it may be just and reasonable to allow for the service rendered this commonwealth in quieting the minds of the Cherokee Indians, and in settling many families upon that tract of land in the back country, commonly called Transylvania."

The way was now clear for the inquiry called for in the memorial of the Indiana Company. A day was set in the May session for a hearing, and public notice was inserted in the Virginia Gazette for all concerned to attend. Meanwhile petitions and memorials were accumulating, and the minutes of the assembly were burdened with applications for confirmation of titles obtained in various ways: lands taken up for homesteads, purchases from the Indians, grants of the Dunmore government, army warrants, under the royal proclamation, or under orders of the governor and council. The claims antedate the Virginia constitution, but they are all illegal under the retroactive aspect of the constitution. They must be swept out of the chartered territory of Virginia and all unpatented lands reclaimed, from the boundaries of Pennsylvania southwest to the indeterminate lines of the Carolinas and Georgia. The finding of the Indiana Company case, after a ceremonious hearing June 9, 1779, marks the climax of activity in these expulsions:

Resolved, That the commonwealth of Virginia hath the exclusive right of pre-emption, from the Indians, of all lands within the limits of its own chartered territory, as declared by the act and constitution or form of government in 1776, that no person or persons whatsoever have, or ever had, a right to purchase any land within the same from any Indian nation, except only persons duly authorized to make such purchases on the public account, formerly for the use and benefit of the colony, and lately of the commonwealth; and that such exclusive right or pre-emption will, and ought to be, maintained by this commonwealth to the utmost of its power.

Resolved, That every purchase of land heretofore made by the King of Great Britain from any Indian nation or nations, within the before mentioned limits, doth and ought to enure forever to and for the use and benefit of this commonwealth, and to and for no other use or purpose whatsoever.

Resolved, Therefore, That the deed from the six united nations of Indians, bearing date on the third day of November, 1768, for certain lands between the Alleghany mountains and the river Ohio, above the mouth of the little Kanawha creek, to and for the use and benefit of a certain William Trent, gentleman, in his own right, and as attorney for sundry persons in the said deed named, as well as all other deeds which have been or shall be made by any Indian or Indians, or by an Indian nation or nations, for lands within the limits of the charter and territory of Virginia as aforesaid, to or for the use or benefit of any private person or persons, shall be, and the same are hereby declared utterly void, and of no effect.

In order to remove and prevent all doubt concerning purchases of land from the Indian nations, the general assembly framed the first and second resolution into a bill and enacted the same on the 17th of June at this session, with the title: An act for declaring and asserting the rights of this commonwealth, concerning purchasing land from Indian nations. 18

While the general assembly was thus striving to establish a jurisdiction over the disputed territory, and to set up a revenue for the benefit of the public exigencies by wholesale reclamations of the soil of the back lands, the Old Dominion unexpectedly gained the chance to expand the government of the commonwealth over the entire area of her claims. Clark had heard the call of conquest in the wilds of Kentucky, and hurrying to the capital secured a commission of secret invasion. He mustered his militiamen in Virginia for an overland crusade to Detroit, and having crossed the Ohio halted at the Kaskaskies, with the result well known to fame. Clark brought as his trophy to the commonwealth a fictitious estate for an empty treasury. When lands were lacking in every colony to satisfy overwhelming requirements of bounty obligations, he opened a way for Virginia to the fabulous wealth of an immeasurable wilderness. All other land claims were as nothing compared with these, and Virginia had secured all. These delusive prospects of profit in the sales of Ohio lands lay in the marvellous fertility of the soil, in the abundance of natural products, in salt springs known to abound, and in traditional mineral deposits of gold, silver, copper, and lead along the river. Here was land for ready sale, an imaginary asset, sufficient to indemnify Virginia for all the past expenditures of war, to pay off all bounty promises, to furnish a means for permanent reduction of taxation, and to leave vast areas untouched for future uses.

Virginia lost no time in securing this new property. It is recorded under date of the 19th of November, 1778, that "the speaker laid before the House, a letter from the governor, enclosing several letters and papers from Lieut. Col. Clarke and Captain Leonard Helm." The letters and papers, being read, were referred to a committee named, to whom leave was given to prepare and bring in a bill "for establishing a county, to include the inhabitants of this commonwealth, on the western side of the Ohio river, and for the better government of those inhabitants." This is the record of the act to establish the county of Illinois, the land of Clark's triumph, and to provide a temporary form of government adapted to the circumstances of the new citizens of the commonwealth, French and Canadians, who had taken the oath of fidelity to Virginia "on the westward side of the Ohio, in the vicinity of the Mississippi." No other description is necessary! The legal bounds of the new county embrace all that remains of the expanse of the King James charter, up into the land throughout, "from sea to river, west and northwest" from Old Point Comfort. 19

It was in this session of the general assembly, in which it was ordained to establish this distant dependency of the commonwealth on territory claimed by sister states and on lands still in controversy in the general congress, and while the tenure of land cases were actually depending on the decision of the assembly, that the Virginia house of delegates developed the plan of forcing immediate conclusion of the confederacy. The bill creating the county of Illinois became a law on the 30th of December, 1778. On the same day the plan was formulated in the house to bring the backward states quickly to the terms of a confederation so favorable to Virginia's hopes. The matter was under consideration until the 18th, when the house came to the following resolutions, which the next day were concurred in by the Senate:

Resolved, nemine contra dicente, That our delegates in Congress be instructed to propose to Congress, that they recommend to each of the states named as parties in the articles of confederation, heretofore laid before and ratified by the assembly, that they authorize their delegates in Congress to ratify the said articles, together with the delegates of so many other of the said states, as shall be willing, so that the same shall be forever binding on the states so ratifying, notwithstanding that a part of those named shall decline to ratify the same; allowing, nevertheless, to the said states so declining, either a given or an indefinite time, as to Congress shall seem best, for acceding to the said confedereration, and making themselves thereby members of the Union.

Resolved, nemine contra dicente, That our said delegates now in office, or hereafter to be appointed, be authorized and required, and they are hereby authorized and required to ratify the said articles of confederation on the part of this commonwealth, with so many of the other states, named in them as parties, as shall on their part ratify the same.

Resolved, nemine contra dicente, That it be an instruction to the Virginia delegates, to inform Congress of the resolutions of this general assembly, respecting purchases of lands from any Indian nation.

Entered next after this in the journal, in a form indicating that they are part of a single connected action, are these items:

And whereas the assembly hath come to believe that sundry citizens of some of the United States, were, and are, connected and concerned with some of the King of Great Britain's late governors in America, as well as with sundry noblemen and others, subjects of the said King, in the purchase of a very large tract of land from the Indians, on the northwest side of the Ohio river, within the territory of Virginia,

Resolved, Also, That the said delegates be instructed to use their endeavors in Congress, to cause an inquiry to be made, concerning the said purchase, and whether any, and what citizens of any of the United States, were, or are, concerned therein.

The more effectually to enable Congress to comply with the promise of a bounty in lands to the officers and soldiers of the army, on continental establishment;

Resolved, That this commonwealth will, in conjunction with such other of the United States as have unappropriated back lands, furnish out of its territory, between the rivers Ohio and Mississippi, in such proportion as shall hereafter be adjusted and settled by Congress, its proper quota or proportion of such lands, without any purchase money, to the troops on continental establishment of such of the United States, as already have acceded, or shall within such time, given or indefinite, as to Congress shall seem best, accede to the confederation of the United States, and who have not within their own respective territory, unappropriated lands for that purpose; and that a copy of this resolve, be forthwith transmitted to the Virginia delegates, to be by them communicated to Congress.

Not all of this volley of resolutions of the Virginia assembly reached the intended mark, as some of the items have not been located in the journals or papers of the Continental Congress; and not one of them produced the results desired. The edict of the commonwealth against Indian grants would serve as a "no trespass" notice to all the states until a land office route to the preserves was open. The warning of a British invasion by colonization fell short of the general congress. The proffer of land from her own abundance, for the bounty dues of landless states, seems like a a reward of merit for good behavior. It was read in Congress on the 26th of January and repeated, with protestations of sincerity, in the first land session proposition of 1781. The lands intended for this generosity were in Ohio territory; but as the lands were still claimed by New York and Connecticut, and as the general controversy respecting their ultimate disposition was still pending in Congress, the offer to distribute them to pay off the debts of a few states could not well be entertained in that body. The main resolution proposing confederation without Maryland did not reach the files of Congress at once. Doubtless it found the popular channel of publicity of that day, being privately printed as "broadsides" and distributed with signatures attached. It cannot be said that it influenced the action of Delaware, and its effect on Maryland was not quite what was expected by the authors of the resolution. One response may or may not be attributed to it: the issue at Hartford on the 7th of April of power to the Connecticut delegates to conclude confederation without the thirteenth state.

But Maryland had made ready for the assault. Fully anticipating the responsibility that must come upon the state as last obstinate objector in the confederation dispute, the general assembly had prepared a justification of past action and had taken counsel of the sense and deliberate judgment of the state for a future course. It was decided that the state should remain independent, continuing in loyalty to the original compact of colonies until liberty was won, but not confederating on the basis proposed.

The declaration of intentions respecting confederation, and the personal instructions to their six delegates in Congress for use of the same, were prepared by the Maryland assembly simultaneously with the Virginia series of resolves. The two instruments bear date of December 15, four days ahead of the Virginia proposition. The Maryland declaration is a restatement of the series of resolves, remonstrance, and instructions 21 but it is not to be doubted that the sentiments it expressed respecting the confederacy were "made publicly known and explicitly and concisely declared," since the delegates were directed in the instructions