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boundary dispute vitally affecting the future state of Minnesota. The headwaters of the Red River of the North were added permanently to the American domain.
3. The Northwest ORDINANCE. It is now necessary to retrace our steps to the year 1787. While the federal constitutional convention was struggling over the compromises of the new framework of union, a far less distinguished group of men, composing the last Congress of the Confederation, was engaged in passing through its various stages the celebrated Northwest Ordinance. This enactment constituted the first charter of local government passed by federal authority for the newly-won western domain. First in time, it was destined to be first also in importance.
Its terms, which were soon after approved by an act of the first Congress under the constitution, applied only to the region north of the Ohio and east of the Mississippi river. Minnesota east lay within this area, and although it was as yet unpeopled by the white race, the provisions of the ordinance applied fully to it. The ordinance was, therefore, the first American charter of local government for eastern Minnesota. So fundamental and acceptable were the principles of the ordinance that it was inconceivable that they should be circumscribed in their application to a limited area. It is significant that its terms, with the exception of the prohibition of slavery, were soon after extended to a new area,” but it was far more important and basic that to every freedom-loving pioneer who labored to extend the American civilization deeper and deeper into the remote west, its principles were among the most priceless of treasures. The anniversary of the passage of the act was a frequent day of celebration in the western country, and it is not too much to say that, in a very true sense, the Northwest Ordinance was the Magna Charta of the west.
The ordinance made brief and simple provision for the temporary government of the territory. In the first stage there was to be a rudimentary administration of the entire district by a governor, a secretary, and threw judges, appointed by the president with the consent of the Senate. As soon as the district had attained a population of five thousand free male inhabitants a legislative assembly, of which one house should be popularly elected, was to be created. The whole territorial stage was intended to be purely transitory, however. Out of the territory, states were to be formed, dedicated to "the fundamental principles of civil and religious liberty,” and these states were to be admitted "to a share in the Federal councils on an equal footing with
* Stat. at Large, 1:51, footnote; Laws of the U. S., 1:475; U. S. Rev. Stat. 1878, p. 13. & Stat, at Large, 1:50. 7 Ibid., 1:123. 8 Northwest Ordinance, secs. 3-8, as modified by the act of August 7, 1789, Stet, at Large, 1:50.
the original states, at as early periods as may be consistent with the general interest.” To this end it was "ordained and declared ... 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.”
The six articles of compact may be summarized as follows: There was, in the first place, the substance of a bill of rights, similar to those already to be found in the state constitutions. The inhabitants of the territory were guaranteed freedom of religious worship, the right to the writ of habeas corpus, jury trial, bail, and moderate punishments in case of conviction for crime. The right to common law was especially mentioned,--ample evidence that the Quebec Act was still held vividly in mind. No person was to be deprived of liberty or property without due process of law; property or particular service was not to be taken without full compensation; and "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.” Last, and of great historical importance, was the provision that "there shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crime.”
In addition to these provisions for personal liberty, there were exhortations to the people of the territory forever to encourage schools and means of education. They were admonished to be just to the Indians. The territory and the states formed within it were forever to remain a part of the Union, and the inhabitants thereof were to bear their portion of the federal burdens. Their main waterways were to be common highways and forever free to all citizens of the United States. “The legislatures of those districts, or new States, shall never interfere with the primary disposal of the soil by the United States .., 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.” These provisions were unquestionably the source of similar clauses later inserted into the organic acts of many territories and the enabling acts of the states, and from these carried over into the state constitutions themselves.
Article V of the compact stands next to the anti-slavery provision in importance. It provided that “there shall be formed in the said territory not less than three nor more than five States,” and upon the assumption that three would be formed, it outlined their boundaries. Congress was, however, authorized to modify the prescribed state lines so as "to form one or two States in that part of the said territory which lies north of an east and west line drawn through the southerly bend or extreme of Lake Michigan.
And whenever any of the said States shall have sixty thousand free inhabitants therein, such State shall be admitted, by its delegates, into the Congress of the United States, on an equal footing with the original States, in all respects whatever; and shall be at liberty to form a permanent constitution and State government: Provided, The constitution and government, so to be formed, shall be republican, and in conformity to the principles contained in these articles." Herein lay the promise, always held out to western settlers, of ultimate statehood and equality in the nation. A more enlightened charter of colonial government had not up to this time been devised anywhere in the world.
Originally adopted in 1787, sixteen years before the Louisiana Purchase, the Northwest Ordinance naturally did not apply from the first to the region designated as Minnesota west, though it was nominally effective in Minnesota east. But Minnesota west was not destined to remain long without the benefit of laws which were in effect east of the Mississippi. By sections 14 and 15 of the act of June 4, 1812, providing for the government of the territory of Missouri, the essential personal liberties guaranteed in the Northwest Ordinance, with the exception of the prohibition of slavery, were extended to the entire northern portion of the Louisiana Purchase. The compromise provision of the Missouri enabling act, March 6, 1820, added the prohibition of slavery and involuntary servitude.10 The net result was the establishment of the essentials of the ordinance by indirect action. The same end was later accomplished by separate and more direct congressional provision. In the act for the territorial government of Iowa, approved June 12, 1838, it was provided "that the inhabitants of the said territory shall be entitled to all the rights, privileges and immunities heretofore granted and secured to the territory of Wisconsin and to its inhabitants."11 The Minnesota organic act, 1849, section 12, made similar provision. To have added a general prohibition of slavery to this act, as was attempted during its passage, would, therefore, have changed nothing. As a result of this series of enactments, the territory of Minnesota, both east and west, was legally guaranteed against slavery despite the repeal of the Missouri Compromise in the Kansas-Nebraska legislation in 1854; for, since Minnesota did not depend upon that compromise for her freedom from slavery, the simple repeal of that agreement did not serve to legislate slavery into the territory. In a word, Minnesota west came to enjoy freedom from human servitude not because of the Missouri Compromise, but because the anti-slavery provision of the Northwest Ordinance was extended to her territory.18
• Ibid., 2:743, 747.
Other portions of the Northwest Ordinance were made applicable in Minnesota by sections 6, 18, and other sections of the organic act. Stat. at Large, 9:405, 408.
4. CARVING OUT NEW STATES IN THE NORTHWEST. The British were slow to withdraw from the Northwest territory and their tardiness checked for several years the settlement of this region by Americans. After the Jay Treaty and Wayne's victory over the Indians, immigration was more rapid and by 1800 Congress found it necessary to make the first division of the territory for purposes of local government.
The act of 1800 divided the territory into an eastern and a western portion by a line from the mouth of the Kentucky river on the Ohio to Fort Recovery, near Greenville, Ohio, and thence due north to the international boundary.14 Most of the populous region east of this line was soon admitted to the Union as the state of Ohio.15 All the territory west of the line became Indiana territory, the second territorial organization to include Minnesota east. Nine years later Indiana territory was itself divided into two parts by act of Congress 16 Substantially what is now the state of Indiana was set apart with a view to immediate statehood, while the remainder of Indiana territory, as it stood from 1805 to 1809, was erected into the territory of Illinois. Minnesota east thus passed under the third distinct territorial government since 1787. Another nine years brought another change. By an act of April 18, 1818, Illinois was divided.18 A territory approximating the present state of Illinois was separated from the remainder of the old Northwest territory for purposes of statehood. What remained, including Minnesota east and the territory of the present state of Wisconsin, passed temporarily under the government of Michigan territory.19
In the meantime, the territory of Minnesota west had also undergone a series of changes in status due to federal enactments for the government of Louisiana. Following a brief period under what was practically military rule, Louisiana was divided in 1804 into the territory of Orleans south of 33° north latitude, and the district of Louisiana north of that line.20 The latter, including Minnesota west, was governed from 1804 to 1805 by the governor and judges of the territory of Indiana.21 It may be remarked that this was the first time since the extension of American sovereignty over Louisiana that the two portions of the later state of Minnesota were united for purposes of local government. Thereafter they were separated and reunited several times.
14 Stat. at Large, 2:58; Laws of the U. S., 3:367. 15 Stat. at Large, 2:173; Laws of the U. S., 3:496. 10 Stat. at Large, 2:514; Laws of the U. S., 4:198.
17 In 1805 Michigan had been separated from Indiana territory without affecting the status of Minnesota east. Stat, at Large, 2:309; Laws of the U. S., 3:632.
18 Stat. at Large, 3:428; Laws of the U. S., 6:292.
Stat. at Large, 2:283, sec. 12; Laws of the U. S., 3:603, 608, sec. 12.
This condition of union was altered by the act of March 3, 1805, which changed the district into the territory of Louisiana and set it up as an organized territory with its own governor and judges. 22 The territory of Louisiana endured from 1805 to the first Monday in December, 1812, when it became the organized territory of Missouri without change of boundary.23 Minnesota west was again affected by federal legislation in 1821 when the present state of Missouri was admitted to the Union with her southern boundary fixed at 36° 30' north latitude.24
The legal position after 1821 of the territory north and west of Missouri is not made clear by the legislation just mentioned. The Missouri enabling act simply authorized the inhabitants of a portion of Missouri territory to form for themselves a constitution preparatory to admission to the Union as a state. Nothing was said as to the government of the renainder, save that "in all that territory ceded by France to the United States, under the name of Louisiana, which lies north of thirty-six degrees and thirty minutes north latitude, not included within the limits of the state contemplated by this act, slavery and involuntary servitude, ... shall be, and is hereby, forever prohibited.”25
Looking ahead nearly thirty years we find that when Wisconsin had just been admitted to the Union as a state in 1848, Minnesota east was left outside, with no specific provision made as to its government. It was in precisely the position of the country north and west of Missouri after 1821, except that it was much smaller. At this time the theory was urged, with partial success, that the setting up of Wisconsin as a state did not destroy the existence of Wisconsin territory if there were any territory left over which its government could operate, and on the strength of this contention Mr. Sibley went to Washington, after receiving the suffrages of his constituents, and was seated as the delegate of the territory of Wisconsin. Had this idea prevailed on the admission of Missouri, the government of the territory of Missouri could simply have gone on administering the affairs of the remaining territory, exclusive of the state of Missouri. This was not the case, however; the local authorities seem to have relinquished their offices and for a dozen years no others were set up.26
In 1834 Congress finally enacted a statute for the administration of this region.27 This legislation simply attached the territory between Missouri and the Canadian border, from the Mississippi river west to the Missouri
22 Stat. at Large, 2:331; Laws of the U. S., 3:658.
20 "After the admission of the State of Missouri, August 10, 1821, that part of the Territory of Missouri (north and west of the state of Missouri) had no distinct government." Poore, Constitutions, 1:568, note.
27 Stat. at Large, 4:701; Laws of the U. S., 9:79.