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perpetually for the purpose of a university, to be laid off by the purchaser or purchasers, as near the center as may be, so that the same shall be of good land, to bo applied to the intended object by the legislature of the State. | These are the powers under which the sale of 1,500,000 acres of land, on the north side of the Ohio River, was made to the Ohio Company of Associates, represented by Manasseh Cutler and Winthrop Sargent, agents.
It is a common misapprehenson that our educational land-grant policy originated in the ordinance of 1787. On the contrary, the sources of that policy are found in the land ordinance of 1785 and the powers to the board of treasury of 1787. Still it is true, as Mr. Poole has said, that “the ordinance of 1787 and the Ohio purchase were parts of one and the same transaction. The purchase would not have been made without the ordinance, and the ordinance could not have been enacted except as an essential condition of the purchase."
The educational provisions of the land ordinance and of the powers to the board of treasury were purely specific in their application. The first related only to territory ceded by individual States and purchased by the United States of the Indians; the second, only to the sale of lands made to the Ohio Company. But the principles underlying those enactments have been progressively applied to all the public-land States; that is, to all the States west of the Allegheny Mountains, except West Virginia, Kentucky, Tennessee, and Texas. Commonly the grants have been made in the enabling acts relating to the admission of the several States into the Union.
ENABLING ACT for Ohio, approved April 30, 1802.
And be it further enacted,
That the section No. 16 in every township, and where such section has been sold, granted, or disposed of, other lands equivalent thereto and most contiguous to the same shall be granted to the inhabitants of such township for the use of schools
provided always, etc. 3 The reservation of school lands in the land ordinance, in the powers to the board of treasury, and in the enabling act for Ohio left unanswered the question of the mode of application. This question was, whether the public schools that the United States had endowed should be under national or State control. In the case of the university there could be no such question, for the act of 1787 expressly said the university lands should be applied to the intended object by the legislature of the State. By an act approved March 3, 1803, Congress disposed of the open question by vesting in the legislature all lands granted to Ohio for the use of schools "in trust for the use aforesaid, and for no other use, intent, or purpose whatever." +
* The land ordinance of 1785 is found in the Journals of the American Congress from 1774 to 1788, Vol. IV, pp. 520-522; the powers to the board of treasury to contract for the sale of the Western ter. ritory, ibid., Vol. IV, Appendix, pp. 17, 18.
2 Dr. Cutler and the ordinance of 1787. North American Review, No. 251.
Grant of lanıls made to Michigan for schools, act approved Juno 23, 1836. That section No. 16 in every township of the public lands within said State, and when such section has been sold or otherwiso disposed of, other lands equivalent thereto, and as contiguous as may be, shall be granted to the State for the use of schools.
Previous to the admission of Michigan, one of two forms of grant had been followed. The Ohio form is that section No. 16 in every township is granted to the inhabitants of such township, for the use of schools." The Illinois form is that the grant “is made to the State for the use of the inhabitants of such township, for the use of schools.” The form of the grant for Michigan was an innovation that has been uniformly followed since that time. Under the Ohio and Illinois forms each Congressional township has its own separate fund; under the Michigan form there is one consolidated fund, the income of which is distributed according to school population. The latter practice vi. dently more just, and also more conducive to safe and economical administration. It is not surprising, therefore, that some of the older States have attempted to redistribute the township endowments." AN ACT to establish the Territorial government of Oregon. Approved August 14, 1848. Section 20.
That when the lands in the said Territory shall be surveyed under the direction of the Government of the United States, preparatory to bringing the same into market, sections numbered 16 and 36 in each township in said Territory shall be, and the same are hereby, reserved for the purpose of being applied to schools in said Territory, and in the States and Territories hereafter to be erected ont of the same.
This was the first act appropriating section No. 36 as well as No. 16 for the support of schools. California was the first State to receive the two sections to the township.
Congress has never voted lands for common schools save to the public-land States. But in these States, or rather in two or three of them, section No. 16 in certain tracts could not be dedicated to schools because the tracts themselves had been disposed of as wholes. Thus the Western Reserve in Ohio was exploited by Connecticut, as elsewhere related, and the Virginia Military District, in the same State, by Virginia. Then there were many fractional townships where the customary rule could not be applied. All such cases as these Congress in due time provided for by voting lands found in other localities. The following act, passed in 1826, provided in general for these cases: CHAP. LXXXIII.-AN ACT to appropriate lands for the support of schools in oertain townships and
fractional townships, not before provided for. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That to make provision for the support of schools, in all townslips or fractional townships for which no land has been lieretofore appropriated
Statutes at Large, Vol. V, p. 59.
?Judge Cooley gives the principal facts in regard to the form of the Michigan grant, in his “Michigan." Commonwealth series, pp. 306–330.
* The Indiana school law of 1852 is a notable example of such an attempt. (See Boone: History of Education in Indiana, Chaps. XI, XVI.) All such attempts, however, have failed, as the courts have held that the contemplated redistribution would be in violation of the trustship of the State.
Statutes at Large, Vol. IX, p. 330.
for that use in those States in which section number sixteen, or other land equivalent thereto, is by law directed to be reserved for the support of schools in each township, there shall be reserved and appropriated, for the use of schools, in each entise township, or fractional township, for which no land has been heretofore appropriated or granted for that purpose, the following quantities of land, to wit, for each township or fractional township containing a greater quantity of land than three-quarters of an entire townsbip, one section; for a fractional township containing a greater quantity of land than one-half, and not more than three-quarters of a township, three-quarters of a section; for a fractional township containing a greater quantity of land than oue-quarter, and not moro than one-half of a townsbip, one-half section; and for a fractional township containing a greater quantity of land than one entire section, and not more than one-quarter of a township, onequarter section of land.
SEC. 2. And be it further enacted, That the aforesaid tracts of land shall be selected by the Secretary of the Treasury, out of any unappropriated public land within the land district where the township for which any tract is selected may bo situated; and when so selected, shall be held by the same tenure, and upon the same terms, for the support of schools in such township, as section number sixteen is, or may be beld, in the State where such township shall be situated.
SEC. 3. And be it further enacted, That there shall be selected, in the manner above mentioned, one section and one-quarter section of land, for the support of schools within that tract of country usually called the French grant, in the county of Scioto, and State of Ohio.
Thus far land grants for higher institutions of learning have been mentioned only incidentally. The first that is heard of such grants by the National Government is in the powers to the board of treasury, 1787, an extract from which has already been given. The rule has been to grant to each one of the public-land States 2 townships, 72 sections, or 46,080 acres of land for this purpose. The legislation in the case of Michigan will answer the purpose of a general type. [Extract from an act of Congress, concerning a seminary of learning in the Territory of Michigan.
Approved May 20, 1826.] Be it enacted by the Senate and House of Representatires of the United States of America in Congress assembled, That the Secretary of the Treasury be, and he is hereby, authorized to set apart and reserve from sale, out of any of tho public lands within the Territory of Michigan, to which the Indian title may be extinguished, and not otherwise appropriated, a quantity of land, not exceeding two entire townsbips, for the use and support of a university within the Territory aforesaid, and for no other use or purpose whatsoever, to be located in tracts of land corresponding with any of the legal divisions into which the public lands are authorized to be surveyed, not less than one section; one of which said townships, so set apart and reserved from sale, shall be in lieu of an entire township of land, directed to be located in said Territory for the use of a seminary of learning therein, by an act of Congress entitled “An act making provision for the disposal of the public lands in the Indian Territory, and for other purposes," approved March twenty-sixth, one thousand eight hundred and four. ? [Extract from an act supplementary to an act entitled "An act to establish the northern boundary of the State of Ohio, and to provide for the admission of the State of Michigan into the Union on certain conditions therein expressed.” Approved June 23, 1836.]
Be it enacted by the Senate and House of Representatires of the United States of America in Congress assembled,
That the seventy-two sections of land set apart and reserved for the use and support of a university, by an act of Congress
"Stat. L., Vol. IV, p. 179. Approved May 20, 1826.
2 Stat. L., Vol. IV, p. 180.
approved on the 20th day of May, 1826, entitled “An act concerning a seminary of learning in the Territory of Michigan,” are hereby granted and conveyed to tho State, to be appropriated solely to the use and support of said university, in such manner as the legislature may prescribe.'
With the lapse of time, Congress has made the terms upon which the educational lands are granted more definite and stringent. For example, the enabling act for the States of North Dakota, South Dakota, Montana, and Washington, approved February 22, 1889, provided :
Sec. 11. That all lands herein grauted for educational purposes shall be disposed of only at public sale, and at a price not less than ten dollars per acre, the proceeds to constitute a permanent school fund, the interest of which only shall be expended in the support of said schools. But said lands may, under such regulations as the legislatures sball prescribe, be leased for periods of not more than five years, in quantities not exceeding one section to any one person or company; and such land shall not bo subject to pre-emption, homestead entry, or any other entry under the land laws of the United States, whether surveyed or unsurveyed, but shall be reserved for school purposes only.
Sec. 13. That five per centum of the proceeds of the sales of public lands lying within said States, which shall be sold by the United States subsequent to the admission of said States into the Union, after deducting all the expenses incident to the same, shall be paid to the said States, to be used as a permanent fund, the interest of which only shall be expended for the support of common schools within said States, respectively.
Section 14 of the same act provides that the 72 sections of university lands granted to each one of the four States shall not be sold for less than $10 per acre, but said lands may be leased as provided for in section 11:
The schools, colleges, and universities provided for in this act shall forever remain under the exclusive control of the said States, respectively, and no part of the proceeds arising from the sale or disposal of any lands herein granted for educational purposes shall be used for the support of any sectarian or denominational school, college, or university.
Section 17 of this act, in lieu of the grant of 500,000 acres of land made to each State for internal improvements, under the act of September 4, 1841, and in lieu of the grant of swamp lands made to certain States under the act of September 28, 1850, and in lieu of any grant of swamp lands to said States, gives them specific quantities of land for specific purposes, as follows:
To the State of South Dakota : For the school of mines, forty thousand acres; for the reform school. forty thousand acres; for the deaf and dumb asylum, forty thousand acres; for the agricultural college, forty thousand acres; for the university, forty thousand acres; for State normal schools, eighty thousand acres; for public buildings at the capital of said State, fifty thousand acres; and for such other educational and charitable purposes as the legislature of said State may determino, one hundred and seventy thousand acres; in all, five hundred thousand acres.
To the State of North Dakota a like quantity of land as is in this section granted to the State of South Dakota, and to be for like purposes, and in like proportions as far as practicable.
"Stat. L., Vol. V, p. 59.
To the State of Montana: For the establishment and maintenance of a school of mines, one hundred thousand acres; for State normal schools, one hundred thousand acres; for agricultural colleges, in addition to the grant herein before made for that purpose, fifty thousand acres; for the establishment of a State reform school, fifty thousand acres; for the establishment of a deaf and dumb asylum, fifty thousand acres; for public buildings at the capital of the State, in addition to the grant herein before made for that purpose, one hundred and fifty thousand acres."
To the State of Washington: For the establishment and maintenance of a scientific school, one hundred thousand acres; for State normal schools, one hundred thousand acres; for public buildings at the State capital, in addition to the grant herein before made for that purpose, one hundred thousand acres; for State charitable, educational, penal, and reformatory institutions, two hundred thousand aeres.
That the States provided for in this act shall not be entitled to any further or other grants of land for any purpose than as expressly provided in this act. And the lands granted by this section shall be held, appropriated, and disposed of exclusively for the purposes herein mentioned, in such manner as the legislatures of the respective States may severally provide. 1
One vigorous attempt was made to arrest the national educational policy, or at least to change its character. The legislature of Mary. land in 1821 adopted an elaborate report, submitted by the committee to which so much of the governor's annual message as related to education and public instruction had been referred, that concluded with the following resolutions :
Resolved, by the general assembly of Maryland, That each of the United States bias an equal right to participate in the benefit of the public lands, the common property of the Union.
Resolred, That the States in whose favor Congress have not made appropriations of land for the purposes of education, are entitled to such appropriations as will correspond, in a just proportion, with those heretofore made in favor of the other States.
Resolved, That his excellency the governor be required to transmit copies of the foregoing report and resolutions to each of our Senators and Representatives in Congress, with a request that they will lay the same before their respective Houses, and use their endeavors to procure the passage of an act to carry into effect the just principle therein set forth.
Resolred, That his excellency the governor be also requested to transmit copies of the said report and resolutions to the governors of the several States of the Union, with a request that they will communicate the same to the legislatures thereof, respectively, and solicit their cooperation.
The legislatures of New Hampshire and Vermont indorsed this report. The legislature of Ohio, on the other hand, adopted a long and carefully drawn reply submitted on December 26, 1819, by a special committee of five, to which the Maryland, New Hampshire, and Vermont reports had been referred. And this appears to have been the end of the matter.
AUTHORITIES.-The subjects treated in this section may be studied in the following documents in addition to those already cited:
0. B. Pickering: Life of Timothy Pickering, Vol. I, Chaps. XXXII, XXXVI, and Appendix No. 3. H. W. Smith: The St. Clair Papers,
*Stat. L., Fiftieth Congress, pp. 679-681.
See Alfred Kelley, His Life and Work, by the Hon. James L. Bates. Columbus, Ohio, 1888, Chaps. IV, V.