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cennes to treat with the Indians. He later assisted in a treaty with the Indians of the lakes. After the admission of Ohio into the Union, he held minor civil positions and was at one time associate judge of Tuscarawas County. This position he resigned in 1810 and returned to Bethlehem, Pennsylvania, where he died January 21, 1823. In the later years of his life he devoted much time to literary work. To him and his wife, Sarah, was born April 16, 1781, Maria Heckewelder, often spoken of as the first white child born within the limits of Ohio. This claim, however, is not sustained by the records of the Moravian missions. The official diary of Gnadenhutten records the fact that on July 4, 1773, was born John Lewis Roth. There is some dispute even as to whether he was really the first white child born in Ohio, but his claim to that honor seems to be fairly well established. It is claimed, however, that the marriage of Heckewelder to Miss Sarah Ohneberg in July, 1780, was the occasion of the first wedding of a white couple within the borders of this state.

David Zeisberger was born in Zauchtenthal, Moravia, April 11, 1721. His parents, in 1736, immigrated to Georgia. Two years later he joined them ; in 1743 entered the Indian school at Bethlehem, Pennsylvania, where he became conversant with many of the Indian languages preparatory to entering upon missionary service. In the spring of 1771 he visited the Delaware capital in the Tuscarawas Valley and was received with great favor. Netawotwes, chief of the Delaware nation, granted him land on which .to establish a mission. In May, 1772, with five Indian families from Pennsylvania, he laid out the town of Schoenbrunn. Before the end of the year the town contained more than sixty houses. In October, 1772; Gnadenhutten was laid out. In 1780 Salem was platted and its chapel dedicated May 22 of the same year. In 1781 the Moravian Indians and their missionaries were taken to Canada and were finally settled on the Thames River. In 1798 Zeisberger and thirty-three Indians returned to Ohio and founded Goshen near the site of Schoenbrunn. 'Here Zeisberger died November 17, 1808, in the eighty-eighth year of his age. At his request he was buried in the little graveyard at Goshen with his Indian converts. A substantial but modest monument marks his last resting place, while the graves of the Christian Indians have also been appropriately marked with a flat stone placed over each bearing the Indian name of the convert who rests beneath. This little churchyard in recent years has gradually become an interesting spot to tourists.

The foregoing sketches, which are copied from Howe's "Historical Collections of Ohio," are here supplemented simply with the names of other missionaries who labored .in this field. They are John Ross, John Jacob Schmick, John C. Jungman, William Edwards, Gottlob Seman, Michael Jung, Benjamin Mortimer.

William Edwards was born in Wiltshire, England, April 24, 1724. He died at Goshen, October 8, 1801.

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CHAPTER I

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THE ORDINANCE OF 1787, ITS ORIGIN AND AUTHORSHIP

The timely adoption and beneficent influences of this great charter of American liberty have been frequently the theme of the orator, the statesman and the historian. It is a little remarkable that the authorship of this important state paper has been the subject of discussion for more than a century and that it has engaged the attention of some of the eminent men of our nation. It is generally known to have entered into the great debate between Daniel Webster on one side and Thomas H. Benton and Robert Hayne on the other, but just what form this discussion took is familiar only to those who have access to the debates of Congress and have taken the time to locate and read the contributions of Benton and Webster to the solution of the problem. And while perhaps their discussion should have settled the controversy, like Congressional debates on other important themes, it failed to do so and the years following the great debate brought forth different claimants for the honor of authorship.

In his Ohio First Fruits of the Ordinance of 1787 Rufus King, grandson of the Revolutionary statesman by the same name who contributed in the Colonial Congress some ideas for the Ordinance, writes thus of the question of its origin :

"The authorship of this Ordinance has lately been made a subject of curious speculation. It is certain that some eminent men were differing upon it a year before its passage. But that Nathan Dane had the chief hand in forming it as it ultimately appeared, was never doubted during his life or that of his contemporaries. Mr. Webster asserted it with emphasis in both of his speeches in the great debate in January, 1830, concerning the public lands. Chief Justice Chase reiterated it in 1833 in the historical sketch prefixed to his compilation of the statutes of Ohio. Recent discoveries, however, are supposed to displace him, and Doctor Cutler is brought forward as having given the paper its stamp and character. The subject seems to have fallen under that morbid infirmity in literature which delights in denying Homer and Shakespeare their works, and sometimes have not spared even Holy Writ from its rage."

The rival claims of authorship are due to the fact that the Ordinance was over four years in the process of evolution. At the close of the Revolution many of the officers and men of the army found themselves penniless with nothing but claims upon the new Nation that they had helped to create, as a reward of their services. Discontent among them was rife and Congress was hard pressed to meet their just demands. No cash was in the treasury to pay these obligations but different original states had ceded to the Government their claims to western lands and many of these officers were willing and eager to exchange their claims for the fertile lands west of the Alleghany Mountains. An organized movement on the part of officers of the Revolutionary army was at last inaugurated for the purpose of founding a new state in the valley of the Ohio. Timothy Pickering, Revolutionary soldier and statesman, was the first apparently to draft a form of government for the purposed state. On April 7, 1783, he sent this draft

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in a letter to Samuel Hodgdon. In this letter he said among other things :

"But a new plan is in contemplation—no less than forming a new state westward of the Ohio. Some of the principal officers of the army are heartily engaged in it. About a week since, the matter was set on foot, and a plan is digesting for the purpose. Enclosed is a rough draft of some propositions respecting it, which are generally approved of. They are in the hands of General Huntington and General Putnam for consideration, amendment, and addition. * * * As soon as the plan is well digested, it is intended to lay it before an assembly of the officers, and to learn the inclinations of the soldiers. If it takes, an application will then be made to Congress for the grant and all things depending on them." 1

Colonel Pickering's plan, because it was the first offered for the purpose stated, is here given in full :

PROPOSITIONS FOR SETTLING A NEW STATE BY SUCH OFFICERS AND SOLDIERS OF THE FEDERAL ARMY AS SHALL ASSOCIATE FOR THAT PURPOSE.

1. That the United States purchase of the natives that tract of country which is bounded by Pennsylvania on the east, the River Ohio on the south, a meridian line drawn thirty miles west of the mouth of the River Scioto on the west—this meridian to run from the Ohio to the Miami River, which runs into Lake Erie—and by this river and Lake Erie on the north.

2. That, in the first instance, lands be assigned to the army to fulfill the engagements of the United States by the resolutions of the 16th of September, 1776, August 13th and September 30, 1780, to wit :

To a major-general - 1,100 acres

To a brigadier-general - 850 "

1 - Cutler, Life, Journals and. Correspondence of Manasseh Cutler, Vol. I, p. 149.

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And fifty acres more for each member of a family besides the head of it.

4. That the rights of the officers in the medical department be increased in like manner on the same condition.

5. That all officers in the other staff departments, who shall actually settle in the new state within the time above limited, shall receive rights of land in the proportions last stated, on an equitable comparison of their stations with the ranks of the officers of the line and the medical staff.

6. That this increased provision of lands shall extend to all officers of the line and staff, and to all non-commissioned officers and soldiers, who during the present war have performed in the whole three years' service, whether in service or not at the close of the war, provided they present their claims and become actual settlers in the new state by the time above limited.

7. These surplus rights being secured, all the surplus lands shall be the common property of the state and disposed of for the common good ; as for laying out roads, building bridges, erecting public buildings, establishing schools and academies, defraying the expenses of government, and other public uses.

8. That every grantee shall have a house built and ____ acres of land cleared on his right within _____ years, or the same shall be forfeited to the state.

9. That, to enable the associators to undertake the settlement of the new state, the United States defray the expenses of the march thither, furnish the necessary utensils of husbandry, and such live stock as shall be indispensably requisite for commencing the settlement, and subsistence for three years, to wit, one ration of bread and meat per day to each man, woman and child ; and to every soldier a suit of clothes

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annually ; the cost of these articles to be charged to the accounts of arrearages due to the members of the association respectively.

10. That, for the security of the state against Indians, every officer and soldier go armed, the arms to be furnished by the United States and charged to the accounts of arrearages. Ammunition to be supplied in the same way.

11. That a constitution for the new state be formed by the members of the association previous to their commencing the settlement, two-thirds of the associators present at a meeting duly notified for that purpose agreeing therein. The total exclusion of slavery from the state to form an essential and irrevocable part of the constitution.

12. That the associators, so assembled, agree on such general rules as they shall deem necessary for the prevention and punishment of crimes, and the preservation of peace and good order in the state ; to have the force of laws during the space of two years, unless an assembly of the state, formed agreeably to the constitution, shall sooner repeal them.

13. That the state, so constituted, shall he admitted into the confederacy of the United States, and entitled to all the benefits of the Union, in common with the other members thereof.

14. That, at the above-mentioned meeting of the associators, delegates be chosen to represent them in the Congress of the United States, to take their seats as soon as the new state shall be erected.

15. That the associators, having borne together as brethren the dangers and calamities of war, and feeling that mutual friendship which long' acquaintance and common sufferings give rise to, it being also the obvious dictate of humanity to supply the wants of the needy and alleviate the distresses of the afflicted, it shall be an inviolable rule to take under the immediate patronage of the state the wives and children of such associators who, having settled there, shall die, or, by cause of wounds or sickness, be rendered unable to improve their plantations, or follow their occupations, during the first twenty-one years ; so that such destitute and distressed families shall receive such public aids as, joined with their own reasonable exertions, will maintain them in a manner suitable to the condition of the heads of them ; especially that the children, when grown up, may be on a footing with other children whose

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parents, at the original formation of the state, were in similar circumstances with those of the former. 2

Early in the year following the drafting of Colonel Pickering's plan a committee of the Continental Congress consisting of Thomas Jefferson. of Virginia, Samuel Chase of Maryland, and David Howell of Rhode Island agreed upon a form of government for the Western Territory.

On March 1, 1784, Mr. Jefferson made the following report for the committee:

The committee appointed to prepare a plan for the temporary government of the Western Territory have agreed to the following resolutions :

Resolved, That the territory ceded or to be ceded by individual states to the United States, whensoever the same shall have been purchased of the Indian inhabitants, and offered for sale by the United States, shall be formed into additional states, bounded in the following manner, as nearly as such cessions will admit : That is to say, northwardly and southwardly by parallels of latitude, so that each state shall comprehend, from south to north, two degrees of latitude, beginning to count from the completion of thirty-one degrees north of the equator ; but any territory northwardly of the forty-seventh degree shall make part of the state next below. And eastwardly and westwardly they shall be bounded, those on the Mississippi by that river on the one side, and the meridian of the lowest point of the rapids of the Ohio on the other ; and those adjoining on the east, by the same meridian on their western side, and on the eastern by the meridian of the western cape of the mouth of the Great Kanawha. And the territory eastward of this last meridian, between the Ohio, Lake Erie, and Pennsylvania, shall be one state.

That the settlers within the territory so to be purchased and offered for sale shall, either on their own petition or on the order of Congress, receive authority from them, with appointments of time and place, for their free males of full age to meet together for the purpose of establishing a temporary government to adopt the constitution and laws of any one of these states, so that such laws neverthless shall be subject to alteration by their ordinary legislature, and to erect, subject to a like alteration, counties or townships for the election of members of their Legislature.

That such temporary government shall only continue in force in any state until it shall have acquired 20,000 free inhabitants, when, giving due proof thereof to Congress, they shall receive from them authority, with appointments of time and place, to call a convention of representatives to establish a permanent constitution and government for themselves.

Provided, That both the temporary and permanent governments be established on these principles as their basis :

1. That they shall forever remain a' part of the -United States of America.

2. That, in their persons, property and territory, they shall he subject to the Government of the United States in Congress assembled, and to the Articles of Confederation in all those cases in which the original states shall be so subject.

3. That they shall be subject to pay a part of the federal debts, contracted or to he contracted, to be apportioned on them by Congress, according to the same common rule and measure by which apportionments thereof shall be made on the other states.

4. That their respective governments shall be in republican forms, and shall admit no person to be a citizen wh.o holds any hereditary title.

5. That, after the year 1800 of the Christian era, there shall be

2 - Cutler, Life, Journals and Correspondence of Manasseh Cutler, Vol. I, pp. 156-159.

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neither slavery nor involuntary servitude in any of the said states, otherwise than in the punishment of crimes whereof the party shall have been duly convicted to have been personally guilty.

That whensoever any of the said states shall have, of free inhabitants, as many as shall then be in any one of the least numerous of the thirteen original states, such state. shall be admitted by its delegates into the Congress of the United States, on an equal footing with the said original states, after which the assent of two-thirds of the United States, in Congress assembled, shall be requisite in all those cases wherein, by the confederation, the assent of nine states is now required, provided the consent of nine states to such admission may be obtained according to the eleventh of the Articles of Confederation. Until such admission by their delegates into Congress, any of the said states, after the establishment of their temporary government, shall have authority to keep a sitting member in Congress, with a right of debating but not of voting.

That the territory northward of the forty-fifth degree, that is to say, of the completion of forty-five degrees from the equator, and' extending to the Lake of the Woods, shall be called Sylvania. That, of the territory under the forty-fifth and forty-fourth degrees, that which lies westward of Michigan shall be called Michigania ; and that which is eastward thereof, within the peninsula formed by the lakes and waters of Michigan, Huron, St. Clair and Erie, shall be called Cheronesus, and shall include any part of the peninsula which may extend above the forty-fifth degree. Of the territory under the forty-third and forty-second degrees, that to the westward, through which the Assenisipi or Rock River runs, shall be called Assenisipia ; and that to the eastward, in which are the fountains of the Muskingum, the two Miamis of Ohio, the Wabash, the Illinois, the Miami of the Lake, and the Sandusky rivers, shall be called Metropotamia. Of the territory which lies under the forty-first and fortieth degrees, the western, through which the River Illinois runs, shall be called Illinoia ; that next adjoining, to the eastward, Saratoga ; and that between this last and Pennsylvania, and extending from the Ohio to Lake Erie, shall be called Washington. Of the territory which lies under the thirty-ninth and thirty-eighth degrees, to which shall be added so much of the point of land within the fork of the Ohio and Mississippi as lies under the thirty-seventh degree, that to the westward, within and adjacent to which are the confluences of the rivers Wabash, Shawnee, Tanisee, Ohio, Illinois, Mississippi and Missouri, shall be called Polypotamia ; and that to the eastward, farther up the Ohio, .otherwise called the Pelisipi, shall be called Pelisipia.

That all the preceding articles shall be formed into a charter of compact ; shall be duly executed by the President of the United States, in Congress assembled, under his hand and the seal of the United States ; shall be promulgated, end shall stand as fundamental conditions between the thirteen original states and these newly described, unalterable but by the joint consent of the United States, in Congress assembled, and of the particular state within which such alteration is proposed 3 to be made.

This report was recommitted to the committee and on the 22nd of March another report was made that agreed in the main with the first report. The paragraph of the original report containing the names of the new states to be formed northwest of the Ohio River was omitted entirely, but the plan of the division of the Western Territory into states by parallels of latitude and meridians of longitude remained the same. Other changes included the omission of the clause against hereditary titles and the inclusion of three new "principles." One of these denied the right of future states formed under the ordinance to "inter-

3 - Smith, The St. Clair Papers, Vol. II, pp. 603-605.

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fere with the primary disposal of the soil by the United States in Congress assembled" or "with the ordinance and regulations which Congress may find necessary for securing the title in such soil to the bona-fide purchasers." 4 Lands belonging to the United States were exempt from taxation and non-resident owners of lands were not to be taxed at a higher rate than residents. Principle No. 5 in the original draft prohibiting slavery after the year 1800 on motion of a delegate from North Carolina was stricken from the ordinance. Thomas Jefferson and the delegates from the Northern states voted to retain it but it failed by the vote of one state in the Congress and was dropped from the ordinance.

From the adoption of the plan of government for the Western Territory until the enactment of the famous Ordinance of 1787, these resolutions reported by the committee of which Thomas Jefferson was chairman were nominally in force in the Western Territory. Someone has well observed that the Ordinance of 1784 was the law of the Territory but inoperative, until it was finally repealed. Through this period there was practically no migration to the West.

In the Continental Congress other important measures were introduced that did not pass. Among these was one proposed by James Monroe. After Jefferson had gone to France to represent the United States there, Monroe became actively interested in the formation of a government for the Western Territory. He made a visit to the Ohio country and concluded that the division of the Western Territory into states entirely by artificial lines as favored by Jefferson was not practical. He thought that natural boundaries in part should supersede the artificial boundaries. In a report made to Congress March 24, 1786, by a committee of which he was chairman, it was provided that the United States should have power to form not more than five nor less than three states of the territory northwest of the Ohio.

Later another Congressman from Virginia, William Grayson, made a motion to divide this territory in the following manner : "An east

4 - Barrett, Evolution of the Ordinance of 1787, p. 26.

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and west line touching the most southern part of Lake Michigan should separate the territory into two parts. There should be three states between this line and the Ohio, formed by the meridians at the mouth of the Wabash and the great Miami rivers. Lake Michigan would divide the country north of the line into two parts, and these were to be states." This made five states. The motion was lost, but the suggestion was not forgotten. Other motions and resolutions that did not carry also contributed to the final result.

There had been in Congress from time to time, after the adoption of Jefferson's plan in 1784, manifestations of a desire for a new ordinance for the government of the Western Territory. On September 19, 1786, a committee, consisting of William S. Johnson of Connecticut, Charles Pinckney of South Carolina, Melancthan Smith of New York, Nathan Dane of Massachusetts, and John Henry of Maryland, was appointed to propose a plan of temporary government of the territory, and made a report. On April 26, 1787, the same committee reported another ordinance which was read the second time on May 9. It was called up for its third reading on May 10. William Frederick Poole thus characterizes the report :

"Mr. Force has printed its full text. That Mr. Dane or any other Northern man should have served on a committee which drafted such an ordinance, and called for its third reading on the 10th of May, 1787, is evidence that there were very crude ideas in Congress at that time as to what an ordinance defining the fundamental laws of the Northwestern Territory should be. It had no resemblance to the ordinance which passed on the 13th of July. It had no restriction of slavery, none of those sublime principles as to personal and civil rights, education, religion and morality, and the obligation of contracts, which appeared in the later ordinance. It had no articles of compact ; in short, it had none of those provisions which have made the Ordinance of 1787 so beneficial and renowned." 5

As the form and substance of this report is extensively criticised by Mr. Poole, it is here reproduced in full for purposes of comparison :

AN ORDINANCE FOR THE GOVERNMENT OF THE WESTERN TERRITORY

It is hereby ordained by the United States in Congress assembled, that there shall be appointed, from time to time, a governor, whose commission shall continue in force for the term of three years, unless sooner revoked by Congress.

There shall be appointed by Congress, from time to time, a secretary, whose commission shall continue in force for four years, unless sooner revoked by Congress. It shall be his duty to keep and preserve the acts and laws passed by the General Assembly, and public records of the district, and of the proceedings of the governor in his executive department, and transmit authentic copies of such acts and proceedings every six months to the secretary of Congress.

There shall also be appointed a court, to consist of three judges, any two of whom shall form a court, who shall have a common-law jurisdiction, whose commissions shall continue in force during good behavior. And to secure the rights of personal liberty and property to the inhabitants and others, purchasers in the said districts, it is hereby ordained that the inhabitants of said districts shall always be entitled to the benefits of the act of habeas corpus and of the trial by jury.

The governor and judges, or a majority of them, shall adopt and publish in the districts such laws of the original states, criminal and civil, as may be necessary and best suited to the circumstances of the district, and report them to Congress from time to time, which shall prevail in said district until the organization of the General Assembly,

5 - Poole, North American Review, April, 1876.

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unless disapproved of by Congress ; but afterwards the General Assembly shall have authority to alter them as they think fit ; provided, however, that said Assembly shall have no power to create perpetuities.

The governor for the time being shall be commander-in-chief of the militia, and appoint and commission all officers in the same below the rank of general officers ; all officers of that rank shall be appointed and commissioned by Congress.

Previous to the organization of the General Assembly, the governor shall appoint such magistrates and other civil officers in each county or township as he shall find necessary for the preservation of peace and good order in the same. After the General Assembly shall be organized, the powers and duties of magistrates and other civil officers shall be regulated and defined by the said Assembly ; but all magistrates and other civil officers, not herein otherwise directed, shall, during the continuance of this temporary government, be appointed by the governor.

The governor shall, as soon as may be, proceed to lay out the district into counties and townships, subject, however, to such alterations as may thereafter be made by the Legislature, so soon as there shall be five thousand free male inhabitants, of full age, within the said district. Upon giving due proof thereof to the governor, they shall receive authority, with time and place, to elect representatives from their counties and townships as aforesaid, to represent them in the General Assembly ; provided, that for every five hundred free male inhabitants, there shall be one representative, and so on progressively with the number of free male inhabitants shall the right of representation increase, until the number of representatives amount to twenty-five ; after which the number and proportion of representatives shall be regulated by the Legislature : provided, that no person shall be eligible or qualified to act as a representative, unless he be a citizen of one of the United States, or have resided within such district three years, and shall likewise hold, in his own right, in fee simple, two hundred acres of land within the same : provided also, that a freehold or life estate in fifty acres of land in the said district, if a citizen of any of the United States, and two years' residence if a foreigner, in addition, shall be necessary to qualify a man as elector for the said representative.

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 time.

The General Assembly shall consist of the governor, a legislative council, to consist of five members, to be appointed by the United States in Congress assembled, to continue in office during pleasure, any three of whom to be a quorum ; and a House of Representatives, who shall have a legislative authority complete in all cases for the good government of the said district : provided, that no act of the said General Assembly shall be construed to affect any lands the property of the United States; and provided, further, that the lands of the non-resident proprietors shall in no instance be taxed higher than the lands of residents.

All bills shall originate indifferently either in the Council or House of Representatives, and, having been passed by a majority in both Houses, shall be referred to the governor for his assent, after obtaining which they shall be complete and valid ; but no bill or legislative act whatever shall be valid, or of any force without his assent. The governor shall have power to convene, prorogue, and dissolve the General Assembly when in his opinion it shall be expedient.

The said inhabitants or settlers shall be subject to pay a part of the Federal debts, contracted or to be contracted, and to bear a proportional part of the burdens of the government, to be apportioned on them by

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Congress, according to the same common rule and measure by which apportionments thereof shall be made on the other states.

The governor, judges, legislative council, secretary, and such other officers as Congress shall at any time think proper to appoint in such district, shall take an oath or affirmation of fidelity ; the governor before the president of Congress, and all other officers before the governor, prescribed on the 17th day of January, 1785, to the secretary of war, mutatis mutandis.

Whensoever any of the said states shall have of free inhabitants as many as are equal in number to the one-thirteenth part of the citizens of the original states, to be computed from the last enumeration, such state shall be admitted by its delegates into the Congress of the United States, on an equal footing with the said original states : provided the consent of. so many states- in Congress is first obtained as may at that time be competent to such admission.

Resolved, That the resolutions of the 23d. of April, 1784, be and the same are hereby annulled and repealed. 6

Comparing this report with the Ordinance of 1784 one cannot fail to be impressed with the fact that in spite of Mr. Poole's criticism of the former it does furnish in large measure a practical frame of government that in Jefferson's original plan was vaguely left to the people of the territory. In fact the style and language of the later report very closely resembles in most of its paragraphs the great ordinance that was subsequently adopted. In other words the committee had made considerable progress toward the evolution of a practical form of government for the Western Territory. It must be noted that thus far effort had been directed by Congress for a plan of government embracing all the Western Territory—the portion south of the Ohio River as well as that north and west of it. It should be noted, too, that the latter report leads up almost to the articles of compact which were the distinctive and crowning feature of the great ordinance.

Mr. Poole seems to think that there is a wonderful contrast between the literary style of the report of April 26, 1787, and the ordinance adopted July 13 of the same year. 7 If we limit the comparison to the corresponding sections in the two documents, it is certainly somewhat difficult to tell which as a matter of style is superior. If Mr. Dane was the author of the former of the two there is no reason, it would seem, why with the aid naturally accorded by the committee he might not have been the author of the latter.

But Mr. Poole, as we shall see later, was thoroughly convinced that neither Jefferson nor Dane had any claim to authorship worthy of serious consideration.

For convenient comparison the full text of the ordinance is here reproduced :

THE ORDINANCE OF 1787--AN ORDINANCE FOR THE GOVERNMENT OF

THE TERRITORY OF THE UNITED STATES NORTHWEST

OF THE RIVER OHIO 8

Be it ordained by the United States in Congress assembled, That the said territory, for the purpose of temporary government, be one

6 - Smith, The St. Clair Papers, Vol. II, pp. 608-610.

7 - Poole, The Ordinance of 1787 and Dr. Manasseh Cutler as an Agent in Its Formation, p. 15. (Reprint from North American Review for April, 1876.)

8 - The text from which this is printed is found in Journals of the American Congress, Vol. IV, pp. 752-4.

The text here used has been somewhat changed in form though not in word from the text as it passed Congress. The variations are not material. The articles of compact there read "Article the First, Article the Second," etc. There are also immaterial changes in capitalization and punctuation. See the text by Peter Force in The St. Clair Papers, pp. 612-618.

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district ; subject, however, to be divided into two districts, as future circumstances may, in the opinion of Congress, make it expedient.

Be it ordained by the authority aforesaid, That the estates, both of resident and non-resident proprietors in the said territory, dying intestate, shall descend to, and be distributed among their children, and the descendants of a deceased child in equal parts ; the descendants of a deceased child or grandchild, to take the share of their deceased parent in equal parts among them : And where there shall be no children or descendants, then in equal parts to the next of kin, in equal degree ; and among collaterals, the children of a deceased brother or sister of the intestate, shall have in equal parts among them, their deceased parent's share; and there shall in no case be a distinction between kindred of the whole and half blood ; saving in all cases to the widow of the intestate, her third part of the real estate for life, and one-third part of the personal estate ; and this law relative to descents and dower, shall remain in full force until altered by the Legislature of the district. And until the governor and judges shall adopt laws as hereinafter mentioned, estates in the said territory may be devised or bequeathed by wills in writing, signed and sealed by him or her, in whom the estate may be, (being of full age) and attested by three witnesses ; and real estates may be conveyed by lease and re-lease, or bargain and sale, signed, sealed and delivered by the person being of full age, in whom the estate may be, and attested by two witnesses, provided such wills be duly proved, and such conveyances be acknowledged, or the execution thereof duly proved, and be recorded within one year after proper magistrates, courts and registers shall be appointed for that purpose ; and personal property may be transferred by delivery ; saving, however, to the French and Canadian inhabitants, and other settlers of the Kaskaskies, St. Vincent's, and the neighboring villages, who have heretofore professed themselves citizens of Virginia, their laws and customs now in force among them relative to the descent and conveyance of property.

Be it ordained by the authority aforesaid, That there shall be appointed, from time to time, by Congress, a governor, whose commission shall continue in force for the term of three years, unless sooner revoked by Congress ; he shall reside in the district, and have a freehold estate therein, in 1,000 acres of land, while in the exercise of his office.

There shall be appointed, from time to time, by Congress, a secretary, whose commission shall continue in force for four years, unless sooner revoked ; he shall reside in the district, and have a freehold estate therein, in 500 acres of land, while in the exercise of his office ; it shall be his duty to keep and preserve the acts and laws passed by the Legislature, and the public records of the district, and the proceedings of the governor in his executive department; and transmit authentic copies of such acts and proceedings, every six months, to the secretary of Congress : There shall also be appointed a court to consist of three judges, any two of whom to form a court, who shall have a common-law jurisdiction, and reside in the district, and have each therein a freehold estate in 500 acres of land, while in the exercise of their offices ; and their commissions shall continue in force during good behavior.

The governor and judges, or a majority of them, shall adopt and publish in the district, such laws of the original states, criminal and civil, as may be necessary, and best suited to the circumstances of the district, and report them to Congress, from time to time ; which laws shall be in force in the district until the organization of the General Assembly therein, unless disapproved of by Congress ; but afterwards the Legislature shall have authority to alter them as they shall think fit.

The governor, for the time being, shall be commander-in-chief of the militia, appoint and commission all officers in the same, below the rank of general officers ; all general officers shall be appointed and commissioned by Congress.

Previous to the organization of the General Assembly, the governor

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shall appoint such magistrates and other civil officers, in each county or township, as he shall find necessary for the preservation of the peace and good order in the same. After the General Assembly shall be organized, the powers and duties of magistrates and other civil officers shall be regulated and defined by the said Assembly ; but all magistrates and other civil officers not herein other wise directed, shall, during the continuance of this temporary government, be appointed by the governor.

For the prevention of crimes and injuries, the laws to be adopted or made shall have force in all parts of the district, and for the execution of process, criminal and civil, the governor shall make proper divisions thereof ; and he shall proceed, from time to time; as circumstances may require, to lay out the parts of the district in which the Indian titles shall have been extinguished, into counties and townships, subject, however, to such alterations as may thereafter be made by the Legislature.

So soon as there shall be 5,000 free male inhabitants of full age, in the district, upon giving proof thereof to the governor, they shall receive authority, with time and place, to elect representatives from their counties or townships, to represent them in the General Assembly ; provided, That for every 500 free male inhabitants, there shall be one representative, and so on progressively with the number of free male inhabitants shall the right of representation increase, until the number of representatives shall amount to 25 ; after which, the number and proportion of representatives shall be regulated by the Legislature ; provided, that no person be 9 eligible or qualified to act as a representative, unless he shall have been a citizen of one of the United States three years, and be a resident in the district, or unless he shall have resided in the district three years ; and in either case, shall likewise hold in his own right, in fee-simple, 200 acres of land within the same : Provided also, that a freehold in 50 acres of land in the district, having been a citizen of one of the states, and being a resident in the district, or the like freehold and two years' residence in the district, shall be necessary to qualify a man as an elector of a representative.

The representatives thus elected, shall serve for the term of two years ; and in case of the death of a representative, or removal from office, the governor shall issue a writ to the county or township, for which he was a member, to elect another in his stead, to serve for the residue of the term. The General Assembly, or Legislature, shall consist of the governor, legislative council, and a House of Representatives. The legislative council shall consist of five members, to continue in office five years, unless sooner removed by Congress ; any three of whom to be a quorum ; and the members of the council shall be nominated and appointed in the following manner, to-wit : As soon as representatives shall be elected, the governor shall appoint a time and place for them to meet together, and, when met, they shall nominate ten persons, residents in the district, and each possessed of a freehold in 500 acres of land, 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 the council, the said House shall nominate ten persons, qualified as aforesaid, and return their names to Congress ; five of whom Congress shall appoint and commission to serve as members of the council five years, unless sooner removed. And the governor, legislative council and House of Representatives shall have authority to make laws, in all cases, for good government of the district, not repugnant to the principles and articles in this ordinance established and

9 - Many texts have "shall be," but in the original it is "be."

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declared. And all bills having passed by a majority in the House, and by a majority in the council, shall be referred to the governor for his assent ; but no bill or legislative act whatever shall be of any force without his assent. The governor shall have power to convene, prorogue and dissolve the General Assembly, when, in his opinion, it shall be expedient.

The governor, judges, legislative council, secretary, and such other officers as Congress shall appoint in the district, shall take an oath or affirmation of fidelity, and of office ; the governor before the president of Congress, and all other officers before the governor. As soon as a Legislature 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.

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 :

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 :

Art. 1st. No person, demeaning himself in a peaceable and orderly manner, shall ever be molested on account of his mode of worship or religious sentiments in the said territory.

Art. 2d. The inhabitants of the said territory shall always be entitled to the benefits of the writs of habeas corpus, and of the trial by jury ; of a proportionate representation of the people in the Legislature, and of judicial proceedings according to the course of the common law. All persons shall be bailable, unless for capital offenses, where the proof shall be evident, or the presumption great. All fines shall be moderate ; and no cruel or unusual punishment 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 have force in the said territory, that shall, in any manner, whatever, interfere with, or affect private contracts or engagements, bona fide, and without fraud previously formed.

Art. 3d. 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.

Art. 4th. 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 the acts and ordinances of the United States in Congress assembled, conformable

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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 the title in such soil to the bona fide purchasers. No tax shall be imposed on lands the property of the United States ; and in no case shall non-resident proprietors be taxed higher than residents. The navigable waters leading into the Mississippi and Saint Lawrence, and carrying places between the same, shall be common highways, and forever free, as well 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 confederacy, without any tax, impost or duty therefor.

Art.-5th. 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 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 authority 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 60,000 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 60,000.

Art. 6th. There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes, whereof the party shall have been duly convicted : provided always, that any person escaping into the same, from whom labor or service is lawfully claimed in any one of the original states, such fugitive may be lawfully reclaimed, and conveyed to the person claiming his or her labor or services as aforesaid.

Be it ordained by the authority aforesaid, that 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

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July, in the year of our Lord 1787, and of their sovereignty and independence the 12th. CHAS. THOMSON, Secy.

The authorship of the ordinance first became a subject of general interest throughout the United States through the prominence given it in the great Webster-Hayne debate. This discussion took a wide range. It is believed that the prominence of those who had a part in it as well as the importance of the subject itself fully justifies a somewhat extended reproduction of what was said, not in the form of paraphrase, but in the language of the distinguished participants.

In the United States Senate, on January 20, 1830, in his first speech on the Foote resolution, which precipitated the famous debate with Hayne, Daniel Webster spoke as follows on the Ordinance of 1787 and its authorship:

"At the foundation of the constitution of these new Northwestern states, lies the celebrated Ordinance of 1787. We are accustomed, sir, to praise the lawgivers of antiquity ; we help to perpetuate the fame of Solon and Lycurgus ; but I doubt whether one single law of any lawgiver, ancient or modern, has produced effects of more distinct, marked and lasting character than the Ordinance of 1787. That instrument was drawn by Nathan Dane, then and now a citizen of Massachusetts. It was adopted, as I think I have understood, without the slightest alteration ; and certainly it has happened to few men to be the author of a political measure of more large and enduring consequence. It fixed forever the character of the population in the vast region northwest of the Ohio, by excluding from them involuntary servitude. It impressed on the soil itself, while it was yet a wilderness, an incapacity to sustain any other than freemen. It laid the interdict against personal servitude, in original compact, not only deeper than all local law, but deeper also than all local constitutions."

Senator Thomas H. Benton of Missouri preceded Hayne in reply to the first speech of Webster on the famous Foote resolution. He undertook to break the effect of that speech by ridicule and an appeal to the records. Benton's biographer seems to think that the senator capped the climax of his reply to Webster in calling that senator to account for ascribing to Nathan Dane the credit of writing the Ordinance of 1787. Here is what Benton said on this point in reply to Webster :

"He has brought before us a certain Nathan Dane, of Beverly, Massachusetts, and loaded him with such an exuberance of blushing honors as no modern name has been known to merit or to claim. Solon, Lycurgus, and Numa Pompilius are the renowned legislators of antiquity to whom he is compared, and only compared for the purpose of being placed at their head. So much glory was earned by a single act, and that act, the supposed authorship of the Ordinance of 1787, for the government of the Northwestern Territory, and especially of the clause in it which prohibits slavery and involuntary servitude. Mr. Dane was assumed to be the author of this clause, and upon that assumption was found, not only the great superstructure of Mr. Dane's glory, but a claim also upon the gratitude of Ohio and all the Northwest, to the unrivalled legislator who was the author of their happiness, and to this quarter of the Union which was the producer of the legislator. So much encomium and such grateful consequences, it seems a pity to spoil—but spoilt they must be ; for Mr. Dane was no more the author of that ordinance than you or I, who about that time were 'mewling and puling in our nurse's arms.' That ordinance and especially the non-slavery clause, was not the work of Nathan Dane of Massachusetts, but of Thomas Jefferson of Virginia. It was reported by a committee of three, Messrs. Jefferson of Virginia, Chase of Maryland, and Howard of Rhode Island—a majority from the slave states, in April, 1784, nearly two years before Mr. Dane became a member of Congress. The clause was not adopted at that time, there being but six states in favor of it

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and the articles of confederation, on questions of that character, requiring seven. The next year, 1785, the clause with some modification, was moved by Mr. King, of New York, as a proposition to be sent to a committee, and was sent to the committee accordingly ; but still did not ripen into a law. A year afterwards, the clause and the whole ordinance was passed, upon the report of a committee of six members, of whom the name of Mr. Dane stands No. 5, in the order of arrangement on the Journal. There were but eight states present at the passing of the ordinance, namely, Massachusetts, New York, New Jersey, Delaware, Virginia, North Carolina, South Carolina and Georgia ; and every one voted for it. So passes away the glory of this world. But yesterday the name of Nathan Dane, of Beverly, Massachusetts, hung in equipoise against half the names of the sages of Greece and Rome. Poetry and eloquence were at work to blazon his fame ; marble, and brass, and history, and song were waiting to perform their office. The celestial honors of the apotheosis seemed to be only deferred for the melancholy event of the sepulchre. Today all this superstructure of honors, human and divine, disappears from the earth. The foundation of the edifice is sapped ; and the superhuman glories of him who, twenty-four hours ago, was taking his station among the demigods of antiquity, have dispersed and dissipated into thin air—vanishing like the baseless fabric of a vision, which leaves not a rack behind." 10

At first reading this reply seems to have demolished the structure erected to Dane by Webster, but that distinguished statesman shortly afterward, on January 26, 1830, in his second speech on Foote's resolution, better known as his reply to Hayne, 11 first devoted some attention to Benton and sustained at some length his claim for Nathan Dane. In his speech that covered two days and touched on many phases of his plea for the Union "now and forever, one and inseparable" he again spoke as follows of the Ordinance of 1787 and the claim of Nathan Dane to authorship:

"Having had occasion to recur to the Ordinance of 1787, in order to defend myself against the inferences which the honorable member has chosen to draw from my former observations on that subject, I am not willing now entirely to take leave of it without another remark. It need hardly be said, that that paper expresses just sentiments on the great subject of civil and religious liberty. Such sentiments were common, and abound in all our state papers of that day. But this ordinance did that which was not so common, and which is not even now universal ; that is, it set forth and declared it to be a high and binding duty of government itself to support schools and advance the means of education, on the plain reason that religion, morality and knowledge are necessary to good government, and to the happiness of mankind. One observation further. The important provision incorporated into the Constitution of the United States, and into several of those of the states, and recently as we have seen, adopted into the reformed constitution of Virginia, restraining legislative power in questions of private right, and from impairing the obligation of contracts, is first introduced and established, as far as I am informed, as matter of express written constitutional law, in this Ordinance of 1787. And I must add, also, in regard to the author of the ordinance, who has not

10 - Congressional Debates, Vol. VI, part 1, 1829-1830, p. 96.

11- Senator Hayne followed Senator Benton in the controversy relative to the Ordinance of 1787, but added nothing new. What he said on the subject of slavery, however, in the course of his argument, is of interest here:

I can truly say that slavery, in the abstract, has but few advocates or defenders in the slave-holding states, and that slavery as itself, an hereditary Institution, descended upon us from our ancestors, would have fewer advocates among us than it has, if those who have nothing to do with the subject would only let us alone. The sentiment in favor of slavery was much weaker before those intermeddlers began their operations than it is at present. Benton, Thirty Years View, Vol. I, p. 136.

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had the happiness to attract the gentleman's notice heretofore, nor to avoid his sarcasm now, that he was chairman of that select committee of the old Congress, whose report first expressed the strong sense of that body, that the old Confederation was not adequate to the exigencies of the country, and recommended to the states to send delegates to the convention which formed the present Constitution.

"An attempt has been made to transfer from the North to the South the honor of this exclusion of slavery from the Northwestern Territory. The journal,' without argument or comment, refutes such attempts. The cession by Virginia was made in March, 1784. On the 19th of April following, a committee, consisting of Messrs. Jefferson, Chase and Howell, reported a plan for a temporary government of the territory, in which was this article : 'That, of ter the year 1800, there shall be neither slavery nor involuntary servitude in any of the said states, otherwise than in punishment of crimes, whereof the party shall have been convicted.' Mr. Spaight of North Carolina moved to strike out .thi paragraph. The question was put, according to the form then practiced, 'Shall these words stand as a part of the plan ?' New Hampshire, Massachusetts, Rhode Island, Connecticut, New York, New Jersey and Pennsylvania, seven states, voted in the affirmative ; Maryland, Virginia and South Carolina, in the negative. North Carolina was divided. As the consent of nine states was necessary, the words could not stand, and were struck out accordingly. Mr. Jefferson voted for the clause, but was overruled by his colleagues.

"In March of the next year (1785), Mr. King of Massachusetts, seconded by Mr. Ellery of Rhode Island, proposed the formerly rejected article, with this addition : 'And that this regulation shall be an article of compact, and remain a fundamental principle of the constitutions between the thirteen original states, and each of the states described in the resolve.' On this clause, which provided the adequate and thorough security, the eight Northern states at that time voted affirmatively, and the four Southern states negatively. The votes of nine states were not yet obtained, and thus the -provision was again rejected by the Southern states. The perseverance of the North held out, and two years afterwards the object was attained. It is no derogation from the credit, whatever that may be, of drawing the Ordinance, that its principles had before been prepared and discussed, in the form of resolutions. If one should reason in that way, what would become of the distinguished honor of the author of the Declaration of Independence? There is not a sentiment in that paper which had not been voted and resolved in the assemblies, and other popular bodies in the country, over and over again."

It may be of collateral interest to note here that the eulogistic references of Webster to Ohio and the Ordinance of 1787 precipitated the famous Webster-Hayne Debate. These references have already been quoted in part only. Webster traced the rapid development of Ohio from an unbroken wilderness to a.prosperous state of one million inhabitants. "This new member of the Republic," said he, "has already left far behind her a majority of the old states. She is now by the side of Virginia and Pennsylvania ; and in point of numbers, will shortly admit no equal but New York herself."

When the Senate, convened on January 21, 1830, Mr. Hayne gave evidence that he had been deeply stirred by Webster's reference to slavery as a source of weakness to Kentucky and the South. He declared that "he would not deny that some things had fallen from that gentleman [Webster] which rankled here [touching his breast], from which he would desire, at once, to relieve himself." 'Webster had discharged his fire "in the face of the Senate." He [Rayne] hoped that Webster would "now afford him the opportunity of returning the shot."

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"I am ready to receive it," said Webster. "Let the discussion proceed."

The memorable debate then proceeded.

After reading the discussion relative to the authorship of the Ordinance of 1787 by such distinguished statesmen one naturally wonders what Nathan Dane himself had to say on the subject. The discussion, of course, aroused much interest throughout the country. In answer to a letter of inquiry, addressed to John H. Farnham, secretary of the Indiana Historical Society, Nathan Dane wrote as follows :

"Beverly, Mass., May 12, 1831.

"Dear Sir : A few days ago I received your letter of April 12, 1831, inclosing the printed constitution and circular of the Indiana Historical Society. It is truly gratifying to observe the rapid, the respectable, and the substantial manner in which the Northwestern Territory is settled. In your letter you say : 'We have been accustomed in Indiana to regard you as the author and supporter of the Ordinance of 1787; that was the opinion until a senator from Missouri (Colonel Benton) in the Senate, session '29 and '30, denied your agency,' etc. As you express a strong desire to receive an authentic history of the Magna Charta of no less than three states, to be deposited in the archives of your society, I send enclosed the printed note 'A' as the best concise account extant of the ordinance and its formation. The note is a part of an appendix to the ninth volume of my General Abridgment of American Law, with occasional notes and comments.

"As to the article excluding slavery, an important one, though perhaps not more so than the provision against impairing contracts, two questions arise : Who first thought of excluding slavery from the Northwestern Territory? Who caused the article to be made a part of the ordinance? The committee that reported the plan of April, .1784, including an article against slavery, very imperfect (as stated in the printed note), consisted of Mr. Jefferson, Mr. Chase, of Maryland, and Mr. Howell, of Rhode Island. As Mr. Howell was from a nonslave-holding state, an active and able member, might he not more probably first think of excluding slavery ? Be that as it may, the slave article in the plan of 1784 was very deficient, and the plan being adopted and the slave article rejected, there was an end of it. The next year, '85, Mr. King of Massachusetts, moved to add a slave article, better in words, but imperfect in substance ; this being only committed, a slave article was no longer proposed by any committee. When the Ordinance of '87 was reported to Congress, and under consideration, from what I had heard, I concluded that a slave article might be adopted, and I moved the article as it is in the ordinance. It was added, and unanimously agreed to, I thought to the great honor of the slave-holding states.

"As it may be asked, how does this motion appear, it is proper to add : In the Missouri debate (as stated in the note) expressions were used that made it proper to inquire in whose handwriting the ordinance was. Mr. Otis, then in the Senate, caused inquiry to be made, and received from Daniel Brent a certificate, of which the following is a Copy :

" 'I have the pleasure to send you a printed copy of the Ordinance of 1787, found among the old papers of Congress, with the draft in manuscript of the sixth article introduced into that ordinance. We can find nowhere the report of the committee upon which the ordinance was founded, but I presume the handwriting of the amendment will be sufficient for your purpose.'

"Mr. Otis, in his letter to be, says that the amendment (the slave article) was in my handwriting. These facts show who caused the slave article to be made a part of the ordinance. In fact, the plan of 1784 was so very imperfect that it could not be amended to answer

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any purpose, nor could materials be found in it to form a thirteenth part of the ordinance of July 13, 1787. Your obedient servant,*

"N. DANE.

"John H. Farnham, Salem, Indiana."

(Inclosure)

MEMBERS OF THE COMMITTEE THAT REPORTED THE ORDINANCE OF 1787

NATHAN DANE

Nathan Dane was born at Ipswich, Massachusetts, December 29, 1752. He was the son of a well-to-do farmer and one of a family of twelve children. Chiefly through his own efforts he prepared for entrance to Harvard College and after a four-year course was graduated, "with high reputation," from that institution in 1778. He taught school in Beverly, Massachusetts, studied law with Judge William Wetmore of Salem, Massachusetts, was admitted to the bar and commenced the practice of law in Beverly in 1782.

His public and political record may be summarized as follows : He was a member of the Massachusetts House of Representatives, 17821785 ; a delegate to Congress, 1785-1787 ; state senator, 1790-1791, 1794-1797; judge of the Court of Common Pleas a short time in 1794; member of a committee to revise the laws of Massachusetts, 1795, 1811; presidential elector in 1812; member of the Hartford convention of 1814; member of the Massachusetts constitutional convention of 1820; died in Beverly, Massachusetts, February 15, 1835.

This is a brief sketch of the life and public services of. Nathan Dane, a statesman whose fame has not been proportionate to his constructive work of large, enduring and beneficent results. It was his privilege to frame the Ordinance of 1787 and to render conspicuous service in the final stages of its adoption. Assuredly the readers of history, especially those who live in the states framed for the Northwest Territory, will wish to know something of the personality and attainments of this statesman who had to his credit this signal achievement before the end of his thirty-fifth year.

He was a man of tireless industry. From the day that he entered upon the practice of the law, he applied himself faithfully to his profession with gratifying success. In the State Legislature and the Continental Congress he was known as a hard and conscientious worker and was for that reason, as well as his recognized ability, assigned to membership in practically all important committees. He was recognized as a ready and effective debater when such ability was more highly regarded than it is today. In the practice of the law, however, he avoided as far as possible trials before judge or jury ; always exerting his influence to settle cases out of court.

If he were living today he would probably be classed as a conservative. He had no sympathy with the political iconoclast and the demagogue, and yet he regarded with favor and never failing interest all measures of practical and rational reform. Hence his desire to prevent the extension of slavery in the Northwest Territory. In this connection it is worth while to remember that he and his colleagues were pioneers in the anti-slavery movement. It was not until 1788, the year after the adoption of the ordinance, that William Wilberforce inaugurated the movement against the slave trade in the British Parliament.

Mr. Dane was one of the founders of the Massachusetts Temperance Society—"the earliest organization of the kind in this country, if not in the world,"—served as its president and gave it liberal financial support. He was reared on a farm, had an abiding interest in agriculture and was for years an active member of the Massachusetts Agricultural Society. He was a member of the Massachusetts Historical Society, of the Essex

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Historical Society and of the American Antiquarian Society. He founded the Dane law professorship in Harvard College in 1829. In 1831 he contributed liberally to the fund for the erection of the Dane Law College, "thus giving to the Cambridge Law School" an assured place and opening up to it a prosperous future.

In 1816 Harvard College conferred upon him the degree of Bachelor of Laws.

Through life Nathan Dane was a hard student, "devoting steadily from twelve to fourteen hours a day" in the last twenty-five years of his life to research and literary work. He was best known by his "A General Abridgment of American Law," in nine volumes. In 1782 he commenced the preparation of a voluminous work entitled, "A Moral and Political Survey of America," which was never published. His biographer states that if the volumes had been issued as they were written they would have been received with interest, but when the work was finished, much that was "prophecy had become history" and ideas, "bold and aggressive when they were committed to writing" at the time of his death were "mere truisms."

"Doctor Dane's studies," we are told, "were not confined to law and history." A Puritan of the strictest type, he devoted Sunday to religious studies. He read the scriptures in the original Hebrew and Greek. He attended church regularly, although for years, because of his deafness, he could not hear a word of the sermon.

Why he did not enter the military service in the Revolution is not known. He appears to have been in college at that time. The fact that without a military title he was frequently honored by the suffrage of his fellow citizens is a tribute to his evident ability and patriotism. His participation in the Hartford convention was unfortunate for his fame, but in that assembly he was associated with others whose motives and fidelity to country were above reproach.

He had no children, but children of his kindred always had a place in his home. He adopted and educated his nephew, Joseph Dane, who served as representative in Congress from Maine.

One who knew him well in his later years pays Nathan Dane this personal tribute :

"No man can have led a more entirely blameless life than Doctor Dane. I was brought up in his near neighborhood and never heard him spoken of but with unqualified respect and veneration ; and I have been told by those of nearly his own age that not the slightest reproach or stain ever rested on his good name."

RICHARD HENRY LEE

Richard Henry Lee of Virginia was one of the delegates to Congress whom Nathan Dane mentioned as especially helpful in framing the Ordinance of 1787. Lee was twenty years older than Dane and had rendered, as will be seen, conspicuous public service prior to 1787. Henry Lee was also a delegate from Virginia to this same Congress, although he was not present when the ordinance passed through its different stages and was adopted. Writers have very naturally confused these two men. They were from the same state ; they were members of Congress, they were subsequently United States senators and both had served in the Revolution. It was Henry Lee who delivered the famous eulogy on Washington and declared him "first in war, first in peace and first in the hearts of his countrymen." It was Richard Henry Lee who, in the second Continental Congress, introduced the famous resolution declaring "that these united colonies are, and of right ought to be free and independent states." It was Richard Henry Lee who signed the Declaration of Independence and it was he who served harmoniously with Nathan Dane on the committee that reported the Ordinance of 1787.

Richard Henry Lee was born in Stratford, Westmoreland County,

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Virginia, January 20, 1732. When quite young he was sent to England and educated at the academy of Wakefield, in Yorkshire. In 1752 he returned to Virginia. His father was wealthy and he had ample means to prepare for his chosen profession, the law. In 1757 he was appointed justice of the peace for Westmoreland County. In 1761 he was elected to the House of Burgesses and continued to serve in that body for twenty-seven years. At first, modestly distrustful of his own ability, he took no part in debate. His first speech was on a motion to stop the importation of slaves by a tax so heavy as to "put an end to that iniquitous and disgraceful traffic within the colony of Virginia." It is said that his hatred of slavery overcame his natural backwardness and he made a "powerful speech, containing the germs of the principal arguments used in later days by Northern abolitionists. He opposed the Stamp Act of 1765, not only in the House of Burgesses but as captain of a militia company. He was a staunch friend of Samuel Adams and active in all the work leading up to the meeting of the first Continental Congress. In that body he was a member of the committee that prepared addresses to the King of Great Britain and to the colonies. In the second Congress he drew up the address to the people of Great Britain and a last petition to the King.

On June 7, 1776, he led in the movement to release the colonies from allegiance to Great Britain and offered his famous resolution already quoted. Illness prevented his presence in Congress later to frame the declaration, and that honor fell to Thomas Jefferson, while the honor of making the principal speech in support of it went to John Adams.

Few men were more active during the Revolution in support of the patriot cause. In four years he is said to have served on more than 100 committees. At times he was called from Congress to serve in the legislative body of Virginia where his presence was more urgently required. His activities were sometimes varied by military service, chiefly in recruiting the militia of his state.

Briefly stated, he was a delegate in the Continental Congress, 1774-1780, and served as its president in 1784 ; a signer of the Declaration of Independence ; colonel of militia ; again delegate in the Continental Congress in 1787; member of the Virginia convention of 1788; elected to the United States Senate and served from March 4, 1789, until his resignation in 1792 ; died in Chantilly, Virginia, June 19, 1794.

It was certainly fortunate that Nathan Dane had with him on the committee that framed the ordinance a statesman so thoroughly equipped and so naturally in sympathy with his own views.

MELANCTON SMITH

Melancton Smith was born in Jamaica, Long Island, in 1724. He was educated at home, where facilities were somewhat limited. He was elected sheriff of Dutchess County, New York, in 1777 ; a member of the First Provincial Congress that met in New York City, May 23, 1775 ; a commissioner in 1777 for detecting and defeating conspiracies against the state ; served in the Continental Congress as a representative of the State of New York, 1785-1788; represented Dutchess County in the convention that assembled to consider the ratification of the Federal Constitution ; moved to New York City in 1785. A little later he served in the General Assembly of the State of New York ; supported Governor Clinton for reelection in 1792; was later circuit judge. He died in New York City, July 29, 1798, of yellow fever, his being the first fatal case of the epidemic in that year.

He was a man of great native ability. Chancellor Kent declares that he was early noted "for his love of reading, tenacious memory, powerful intellect and for the metaphysical and logical discussions of which he was master. He and Richard Henry Lee were the two men that

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Nathan Dane stated were in hearty sympathy with him and very materially assisted in the preparation of the Ordinance of 1787.

Melancton Smith had a son and a grandson who bore and honored his name. The former served in the second war with England and became a major of the Twenty-fifth Infantry and later colonel of the regiment. The latter, the son of the veteran of 1812, became an officer in the American Navy and served with distinction in the Civil war. He participated in the attack on Port Hudson and Fort Fisher. He was commissioned commodore July 25, 1866, and rear admiral July 1, 1870.

EDWARD CARRINGTON

Edward Carrington was born in Charlotte County, Virginia, February 11, 1749. He was a Revolutionary soldier, commissioned lieutenant colonel in 1776; was captured by the British while serving in the South ; afterwards exchanged and quartermaster general to General Greene ; participated in the battle of Hobkirk's Hill and in the siege of Yorktown ; he was a delegate from Virginia to the Continental Congress, 17851787 ; was foreman of the jury in Aaron Burr's trial for treason, 1807; died in Richmond, Virginia, October 28, 1810.

JOHN KEAN

John Kean was born in South Carolina in 1756. He was a Revolutionary soldier ; was taken prisoner and suffered on a prison ship in 1781. He was a delegate to Congress from South Carolina, 1785-1787 ; served on a commission to settle accounts between the United States and individual states ; was cashier in the United States bank at Philadelphia ; died in Philadelphia, Pennsylvania, May, 1795.

NOTES

Note A

As after the lapse of forty-three years, some for the first time claim the Ordinance of July 13, 1787, as a Virginia production ; in substance Mr. Jefferson's, it is material to compare it with his plan or resolve (not ordinance) of April, 1784, in order to show how very groundless the assertion of Senator B. is, that the Ordinance of '87 was "chiefly copied" from his plan. To those who make the comparison, not a word need be said to refute his assertion—on the face of them the difference is so visible and essential—but thousands read his speeches, extensively published, where one makes this comparison. It is surprising, at this late day, that this claim is made for Virginia, never made by herself.

As but few possess the journals of the Old Congress, in which Mr. Jefferson's plan of '84 and the Ordinance of '87, formed by the author, are recorded, it is proper here, concisely, to point out the material difference between them. 1st. The plan of '84 is contained in two pages and a half ; the Ordinance of '87 in eight pages. 2d. The first page in the plan, or resolve, of '84, is entirely omitted in the Ordinance of '87.

3d. From the remaining page and a half of the plan there appears to be transferred to the ordinance in substance, these provisions, to-wit : 1st. "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." 2d. "To all the acts and ordinances of the United States in Congress assembled, conformable thereto." 3d. "The inhabitants and settlers in the said territory shall be subject to pay their part of the federal debts, contracted, or to be contracted, to be apportioned on them, by Congress, according to the same common rule and measure, by which apportionments thereof