1781, by ceding all her title to lands west of a line drawn north and
south twenty miles west of Niagara River, without conditions. Virginia
followed, and on March 1, 1784, conveyed her territory west of the Ohio
River to the United States. Massachusetts, in 1785, also renounced
her claim, unconditionally, to any lands west of the Hudson River.
Connecticut, in 1786, ceded to the United States all the lands claimed
by her west of a north and south line drawn one hundred and twenty-five
miles west of the western boundary of Pennsylvania.
Virginia's first charter having been withdrawn, the second, dated in
1609, gave this colony all the territory for two hundred miles north
and south of Point Comfort, on the Atlantic Coast, and westward to
the "South Sea," or Pacific Ocean, with all islands lying within one
hundred miles of either coast. The extension westward only to the
Mississippi of the northern line of Virginia, by the Treaty of Peace,
left nearly half of that state on the northwest side of the Ohio
River. This territory Virginia, in 1783, offered to cede to the United
States, upon condition that it should be divided into states of not
less than one hundred nor more than one hundred and fifty miles square,
"or as near thereto as circumstances will admit, and that the states
so formed shall be distinct republican states, and admitted members
of the federal union, having the same rights of sovereignty, freedom,
and independence as the other states."[3] The expenses incurred by
Virginia "in subduing British posts, or in maintaining forts and
garrisons within or for the defense, or in acquiring any part of the
territory so ceded or relinquished" should be fully reimbursed by the
United States. The French and Canadian inhabitants, and other settlers
who had professed themselves to be citizens of Virginia, were to have
their possessions confirmed to them, and be protected in the enjoyment
of their rights and liberties. A quantity of land, not exceeding
one hundred and fifty thousand acres, was required to be granted "to
General George Rogers Clarke and the officers and soldiers of his
regiment, who marched with him when the post of Kaskaskia and Saint
Vincent were reduced, and to the officers and soldiers that have been
since incorporated into the said regiment," to be laid off in one
tract in such shape as the officers should choose. Also, in case the
land reserved by law on the southeast side of the Ohio River for the
bounties of the Virginia troops should prove insufficient or of poor
quality, then the deficiency should be made up from the lands on the
northwest side of that river. All the land within the ceded territory,
not reserved or appropriated to the purposes named, was to be a common
fund for the use and benefit of such of the United States as had
become, or should become, members of the confederation, "according to
their respective proportions, in the general charge and expenditure."
In July, 1786, congress recommended to Virginia to revise her act of
cession so far as to empower the United States to divide the territory
northwest of the Ohio River into not more than five nor less than three
states, as the situation of that country and the circumstances might
require, which states were to become in the future members of the
federal union.
In September of the same year, Connecticut ceded to the union the lands
she still claimed west of the State of New York, known as the Western
Reserve, extending one hundred and twenty miles west of the western
boundary of Pennsylvania. In accepting the gift congress required a
deed relinquishing the jurisdictional claim of Connecticut to the
Western Reserve to be deposited with the deed of cession in the office
of the Department of State of the United States; and provided that
nothing contained in the deed of cession should involve the government
in the dispute between Pennsylvania and Connecticut which had been
settled in the federal court. Neither should anything contained in the
deed pledge the United States to extinguish the Indian title to the
ceded lands. All of this being agreed to, the Western Reserve was added
to the Northwest Territory. On the other hand the "military tract" was
reserved, and even added to, but did not become United States donation
lands. They were considered as Virginia's bounty to the men who had
defended and preserved the country. The jurisdiction, however, was in
the general government.
In 1787 South Carolina ceded unconditionally such land as she laid
claim to between the mountain range by which her territory was
traversed, and the Mississippi River. In 1790 North Carolina made her
cession similarly, except that neither the lands nor the inhabitants
west of the mountains should be "estimated" for the expenses of the
Revolutionary War; that soldiers should receive the bounty lands
promised them; that certain entries already made might be changed; that
the ceded territory should be formed into a state or states, with all
the privileges set forth in the ordinance of the late congress for the
government of the Western Territory of the United States; _provided_,
always, that no regulations made, or to be made, by congress should
tend to emancipate slaves. The inhabitants of the ceded territory
were to be liable to pay their proportion of the United States debt,
and the arrears of the debt of North Carolina to the Union. The laws
of this state should be in force in the territory until repealed or
altered, and nonresident proprietors should not be taxed higher than
residents.[4]
For various reasons Georgia was not ready to renounce any territory
claimed by her before 1798, and the deed of cession was not made until
1802. Georgia, like North Carolina, desired to have the state formed
from her territory enjoy the privileges granted to the Northwest
Territory by the ordinance of 1787. Out of the lands relinquished
to the general government by the states south of the Ohio, and the
territory subsequently acquired by treaty and purchase from France and
Spain, were formed, in the early part of the nineteenth century, the
several territories afterwards admitted as states with the rights and
privileges guaranteed in the compact between the United States and the
people of the Northwest Territory.
Hitherto I have sketched the political history of the lands of the
United States with the object only of pointing out the change that
had occurred in men's ideas of natural rights in the soil. They had
also progressed greatly in their understanding of political rights.
The struggle of the American colonies to achieve independence had
served as an object lesson of immense importance even to the colonies
themselves, and they were prepared to guard their new-found freedom
with a jealous care. Next to the Declaration of Independence in justice
and dignity stands the compact entered into between the people and
congress in giving and accepting the territory first ceded by the
original states to the United States, and known as the Ordinance of
Seventeen Eighty-Seven. By this ordinance the people of the Northwest
Territory were assured that no person demeaning himself in a peaceable
and orderly manner, should ever be molested on account of his mode of
worship, or religious sentiments. The people should always be entitled
to the benefits of the writ of _habeas corpus_, and trial by jury;
of proportionate representation in the legislature, and of judicial
proceedings according to the course of common law. All persons should
be bailable, except for capital offenses, the proof of which was
evident, or the presumption great. All fines should be moderate, and
no cruel or unusual punishments inflicted. No man should be deprived
of his liberty but by the judgment of his peers, or the law of the
land. No man's property should be taken for the public service without
full compensation. Religion, morality and knowledge, being necessary
to good government, and the public happiness, schools and the means of
education should be forever encouraged. The utmost good faith should
always be observed towards the Indians. Their lands and property should
never be taken away from them without their consent, nor their rights
and liberty invaded except in lawful war, but laws for their protection
should be enacted. There should be neither slavery nor involuntary
servitude in the territory, otherwise than for the punishment of crimes
whereof the person should have been duly convicted.[5]
Comparing this noble framework of the new state with the laws and
the restrictions imposed upon the colonies from their beginning, our
admiration cannot be withheld. But it is to its effect in furnishing
the means of education to the whole people that attention is here
directed. Schools and education were "forever to be encouraged."
It is true that under the colonial system a few colleges had been
established. Six years after the settlement of Massachusetts, Harvard
College was founded. Virginia and Connecticut were equally in haste to
provide educational advantages for their young men; but it was only the
sons of clergymen and the best families who in those early days found
admittance. Humble people had to be content if they could read, write,
and cipher; and rules of grammar, with the sciences, were beyond their
ambition.
In 1785, two years only after our independence was secured, and six
years after the congress of the states had suggested to the several
commonwealths the propriety of contracting their boundaries in order
to enable the United States to clear themselves of debt, and to be
possessed of a public domain, when only New York, Massachusetts, and
Virginia had ceded any territory, an ordinance was passed providing for
the survey of these lands, and the uses to which they should be put.
One seventh part was to be drafted for "the late Continental army," and
the remainder allotted among the states. The only reservations made
were for the officers and soldiers entitled to bounties from the lands
of Virginia; four lots in each township for the United States, and "lot
No. 16 of every township for the maintenance of public schools within
the said township; also one-third part of all gold, silver, lead, and
copper mines to be sold or otherwise disposed of as congress shall
hereafter direct."[6]
As the other states made their contributions to the public domain,
changes were made in the appropriation of land for educational
purposes, but without affecting the reservation first determined upon
of one thirty-sixth part of all the government lands for school
purposes. As our land system developed, and states were parceled
off one after another, the propositions offered to them more and
more contained large donations for schools of different grades. The
proposition to the State of Ohio, and the appropriations actually made
in 1803, named the sixteenth section in every township in that part of
the territory purchased of the Indians; the thirty-sixth part of the
United States Military Tract; fourteen townships in the Connecticut
Reserve; one thirty-sixth part in the Virginia Military Tract, and
also one thirty-sixth part of all the United States lands in the State
of Ohio to which the Indian title had not yet been extinguished, to
be purchased of the Indians, to consist of the sixteenth section in
each township. One entire township in the District of Cincinnati was
offered for the establishment of an academy. John Cleve Symmes and his
associates, who had purchased a tract in Ohio supposed to contain one
million acres, received from congress, in addition, one entire township
"for the purpose of establishing an academy and other public schools
and seminaries of learning."
When the public lands in Louisiana were offered for sale there was
excepted "section number 16 in every township, and a tract reserved
for a seminary of learning." When Tennessee relinquished her claims
to certain lands, the state was required to appropriate one hundred
thousand acres in one tract for the use of two colleges, one to be
located in East and one in West Tennessee. Another hundred thousand
acres was to be appropriated for the use of an academy in each county
in the state, the land not to be sold for less than $2 per acre; and
the state should, in issuing grants and perfecting titles, locate one
section in every township for the use of schools for the instruction
of children forever. Mississippi was required to reserve section 16 in
each township for the support of schools within the same, "with the
exception of thirty-six sections, to be located in one body by the
Secretary of the Treasury, for the use of Jefferson College." Other
grants were made for religious purposes, and for military services.
Lewis and Clark, for their services in exploring the continent to the
Pacific, received land warrants calling for one thousand six hundred
acres of land each, and the men who accompanied them three hundred
and twenty each, to be located on any of the public lands offered for
sale west of the Mississippi. None of these donations could be made
except by the consent of the representatives of the people in congress
assembled. Thus our government set out with the highest ideal then
possible of community rights in land. If since then we have gambled
away our common heritage, or sold it to non-resident speculators, we
have in so far departed from that ideal.
The largeness of the subject prohibits any attempt to furnish a history
of the land laws of the United States in a single article. It is in
fact the history of this nation. Our land system settled the country
from the Atlantic to the Pacific. It drew to us all the nations of the
earth; it gave them homes, and educated their children; it was "Liberty
enlightening the world." But just because the government was so rich
in lands, it grew careless, speculative, even profligate. It lavished
soil enough to make several states upon corporations without honor,
forgetting that it was only the trustee of the people, whose consent
had never directly been asked. It sold to adventurers, who never
intended to make homes, immense tracts contiguous to watercourses, from
which the buyers excluded citizens of the United States. It winked at
the wrongful acts of its agents in selecting swamp and overflowed
lands, and mineral lands. One thing it never did, however; it never
permitted the school lands to deteriorate in value, but when the legal
sections fell upon worthless ground, lieu lands were permitted to be
selected from any unappropriated good land most contiguous.[7]
* * * * *
In the first quarter century of the republic there was added to its
public lands, by treaty and purchase, the Floridas and all the vast
region known as the Louisiana Territory, reaching north to the British
Possessions and west to the Rocky Mountains. One of our navigators had
discovered the mouth of the mythical Oregon River, and a party of our
explorers had discovered the headwaters of the same, following its
course to the sea. An American fur company had erected a fort near the
mouth of the river, which it lost, first through the treachery of the
British members of the company and a second time by the fortunes of
war, and finally recovered through the victory of our arms on the high
seas. These were wonderful achievements for a nation in its infancy.
But the people were prosperous and satisfied, pressing undauntedly
forward, and filling up the new states. The secret of the prosperity
and content was the equal distribution of land, at a price within the
reach of any, and the reservation in all the townships for common
schools.
We claimed by right of discovery and first occupation, the Oregon
Territory. Great Britain disputed our claim with enough show of
rights to furnish some ground for the contention. Neither government
was prepared to go to war over it, and for nearly thirty years after
the convention of 1818 by which a joint occupancy was agreed upon, a
perpetual irritation was kept up between the two countries through
the determination of the western pioneers to stretch their boundaries
to the Pacific, taking the land surveyor along with them. In 1846 the
question was finally settled, and not unjustly.
The pioneers who for several years had been toilsomely journeying
across two thousand miles of wilderness to reach the Land of Promise,
now looked for immediate congressional action to be taken which should
give them formally the territorial rights and privileges conferred by
the Ordinance of 1787. But in this they were disappointed. That same
ordinance, it was, which delayed the organization of a territorial
government, the people of Oregon having expressly petitioned to be
organized under it in the same manner as the Northwestern States. The
opposition to their petition came from the representatives and senators
of the slave states, who saw in the rapid increase of northern free
states a loss of the balance of power in congress, and the threatened
destruction of slavery, or of the Union. The struggle had been begun a
quarter of a century earlier, when by a compromise between the north
and south, Missouri had been admitted as a slave state under a compact
that no more slave states should be organized north of the parallel of
36° 30´.
The prospect of a large body of free states being formed above that
line, extending even to the Pacific, was one to which southern senators
opposed their most skilled diplomacy, their object being to gain time,
by statecraft or otherwise, to extend slave territory westward at
an equal rate. But the friends of Oregon in congress, who cared not
overmuch about the question of slavery or of free soil, were touched
by the fidelity to the government of the United States of the Oregon
settlers, and anxious to have them rewarded as congress had, year
after year, proposed to do—by liberal donations of land. The Linn
bill had done its work in populating the Wallamet Valley, and the
population of this valley had determined the title to the country. So
much was granted. Thomas H. Benton had written his congratulations on
the settlement of the boundary, and promised the early organization of
the territory under the most favorable conditions. President Polk had
spoken most flatteringly of the loyalty and patriotism of the pioneers.
Stephen A. Douglas had drawn up a bill containing everything for which
the pioneers had ever asked, and something more. That something more
was the thirty-sixth section of land in every township for school
purposes, in addition to the sixteenth.
I am aware that there are some writers who represent that this addition
to school land was a special favor to Oregon; and at least one Oregon
man who claimed to have secured it by his personal efforts.[8] But
the records of congress disprove such pretensions. It was sometimes
objected in congress that the new states were receiving too much
land gratuitously.[9] In a speech on this subject by Woodbridge, of
Michigan, delivered April 29, 1846, that gentleman said: "Now, a
very great error prevails on this subject. It is a common opinion,
I believe, that the school lands, amounting, as the gentleman from
Connecticut says, in some instances, to an enormous amount, are
gratuitously conveyed to the new states. Sir, I do not so read my books
at all. There is no gratuity about it! This appropriation of section
sixteen was made in order to secure an accelerated sale of your wild
lands. I do not say that there were not other and higher motives, but
this was one, and an efficient one. * * * You published to the world
your terms of sale. You pledged your faith to all who should buy land
of you in any surveyed township, that one thirty-sixth part of it,
namely, section number sixteen, should forever afterwards be applied
toward the support of schools. * * * It is true that you afterwards
affected to transfer these school lands to the states; but what passed
by that transfer? Nothing, sir, but the naked title only, subject
always to the use, and I am not prepared to admit the competency of
your doing even that." So there were in congress, in 1846, men who
contended that the western people, and not the government which had
solemnly renounced it, held the right to the educational reservations
in the public lands from the beginning.
In August, 1846, a bill being before congress to enable Wisconsin to
form a state government, it passed through the usual routine, and was
reported from the territorial committee by Douglas, February 9, 1847.
On the fifteenth, the question of engrossing the bill was about being
put, when John A. Rockwell of Connecticut, moved to amend by adding
the following: "And be it further enacted, That in addition to section
numbered sixteen, section numbered thirty-six, in each township of
the public lands of the United States in said state, not heretofore
otherwise disposed of, be, and the same is hereby appropriated to
the support of education in the said state." Certain conditions were
attached, which need not be here quoted, as the amendment failed.[10]
That it failed was not owing to any strong opposition so much as to the
fact of its not being incorporated in the original bill. Congressmen
and senators have to be urged somewhat to make changes by which their
districts gain nothing. Rockwell's amendment was crowded out by other
business concerning the disposition of the public lands then claiming
attention.
Nothing in the circumstances of the case goes to show that Mr. Rockwell
was the first to propose the additional school section. The Wisconsin
and the Oregon bills were in the hands of the same committee of the
house, and at the same time. Yet the Douglas bill contained the two
school sections in every township, and the Wisconsin bill did not. The
Douglas bill passed in the house and was sent to the senate in January,
1847, whereas the Wisconsin bill was not reported until February, which
gives Mr. Douglas precedence in proposing the change to congress. The
question might arise why, since he was chairman of the committee which
presented both bills, he withheld the additional section from one and
gave it to the other. Did he wish to show favor, or seem to do so, to
Oregon, as a reward for her long and loyal waiting? It might well be
so, and probably was so.
But Oregon was not receiving a special gift in the appropriation
of her school lands, as some suppose. In November, 1846, James H.
Piper, Acting Commissioner of the General Land Office, made a report
to Robert J. Walker, Secretary of the Treasury, "on the expediency
of making further provision for the support of common schools in
the land states."[11] The Secretary, in his report to the house of
representatives, referring to the proposed donations of land to
settlers in and immigrants to Oregon, recommended, also, "the grant of
a school section in the center of every quarter of a township, which
would bring the school house within a point not exceeding a mile and
a half in distance from the most remote inhabitant of such quarter
township."[12] In his report for 1847-48 the Secretary of the Treasury
again referred to this subject as follows: "Congress to some extent
adopted this recommendation, by granting two school sections instead
of one, for education in Oregon;[13] but it is respectfully suggested
that even thus extended the grant is still inadequate in amount, while
the location is inconvenient."[14]
William M. Gwin, Senator from California, remarking on the transfer of
the public lands from the Treasury Department to the Department of the
Interior in 1849, says: "When a territorial government was established
over Oregon, some able men contended for four sections for each
township, and they succeeded in getting two," and quotes from Walker's
report.[15] He also referred, in a speech before the State Convention
of California in 1850, to Piper and Walker as authors of the movement
to increase the amount of school land in the new states. Although not
important in themselves, these facts are interesting. It is a pleasure
to the properly constituted mind to know to whom to give credits. It
is also a satisfaction to remove from history falsehoods, whether
deliberate or accidental, which blind our vision as to the verity of
so-called history.[16]