government, the inhabitants of the new district until their number and circumstances should entitle them to form a permanent constitution for themselves, on republican principles, and, as citizens of a free, sovereign, and independent State, to be admitted into the union. In these resolutions lies the germ of Jefferson's ordinance, which was reported March 1, 1784. This fact and the connection of Duane's resolutions with the original suggestions by George Washington have never before been brought out. The influence exerted by the sage of Mount Vernon upon the Alexandria commissioners towards the practical reform of our commercial regulations was like that exercised in the above scheme for establishing a territorial government northwest of the Ohio, even before that territory had been fully ceded. Washington's plans were what the Germans would call "bahnbrechend." His suggestions were the pioneer thoughts of genius; they opened up the ways and pointed out the means.

We shall not be able in this paper to consider the Ordinance of 1784, much less that of 1787, for the government of the North-West Territory. Both of these themes are extremely important and require a careful investigation. We must be content with having found the missing link which connects the Ordinance of 1784 with the practical suggestions of George Washington and with the original idea of Maryland that Congress should assume national sovereignty over the western territory. Although this idea, which Maryland proclaimed as early as 1777, did not obtain that formal recognition which Mr. Carroll hoped to secure by his resolution of the thirteenth of September, 1783, yet, in the nature of things, arose a sovereign relation between the people of the United States and this territorial commonwealth in the west.

And just here lies the immense significance of this acquisition of Public Lands. It led to the exercise of National Sovereignty in the sense of eminent domain, a power totally foreign to the Articles of Confederation. Congress had not the slightest authority to organize a government for the

western territory. The Ordinance of 1784 was never referred to the States for ratification, and yet its articles were termed a "charter of compact," and it was declared that they should stand as "fundamental constitutions”1 between the thirteen original States and each of the new States therein described. Consider, moreover, the importance of the Ordinance of 1787 in establishing the bulwarks of free soil beyond the Ohio and in providing for the educational interests of the Great North-West. "I doubt," says Daniel Webster, "whether one single law of any law-maker, an

1 Journals of Congress, IV., p. 380.

'Webster's Works, III., p. 263. Webster was mistaken in ascribing the authorship of this famous Ordinance to Nathan Dane. Mr. W. F. Poole, of Chicago, in his admirable monograph on the Ordinance of 1787 (see North American Review, April, 1876) has proved conclusively that Mr. Dane could not have been the author, and has made out a strong case for Dr. Manasseh Cutler, of Massachusetts. The same view is taken in a paper read before the New Jersey Historical Society, May 16, 1872. See Proceedings of that society, Second Series (1867-74) III., p. 76. There is a paper on the "Ordinance of 1787" by Edward Coles, formerly governor of Illinois (1822-26), which was read before the Pennsylvania Historical Society, June 9, 1856, and was issued by the Press of the Society in that year. It contains, however, many errors, which Mr. Poole has now set aside. Poole's article is reprinted in pamphlet form by Welch, Bigelow & Co., Cambridge, 1876. For a further discussion of the origin of the Ordinance of 1787, see The St. Clair Papers," and a review of the same in The Nation, May 4, 1882, an extract from which is here reprinted:

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The origin of this famous Ordinance, which established free soil, land titles, townships, schools, civil and religious liberty, beyond the Ohio, and the idea of a growing system of federal States, gradually organized from the national domain under the sovereign control of Congress, is one of the most disputed questions of American constitutional history. Daniel Webster, in his speech against Hayne on the Western land question, took occasion to claim the authorship of the Ordinance for Nathan Dane, of Massachusetts, and said, moreover, that "it was carried by the North, and by the North alone." Hayne and Benton at once opposed this Northern view, and claimed for the South the chief credit in passing the Ordinance, and the honor of authorship for Thomas Jefferson (Benton, i., 133-6). Since that memorable debate, partisans of Massachusetts and Virginia, of the North and South, have battled for the possession of historic ground, which in point of fact belongs to neither party, but to both. The side of Jefferson is best supported

cient or modern, has produced effects of more distinct, marked, and lasting character than the Ordinance of 1787.”

This Ordinance is an exhibition of national sovereignty on the grandest scale, yet there was no authority for it. The present Constitution had not been adopted, and yet Congress was proceeding to legislate on national interests with a boldness which might well have startled those who believe in the doctrine that Government derives its just

by Hon. Edward Coles, a Virginian, at one time Governor of Illinois, in a paper published in 1856 by the Historical Society of Pennsylvania, on the Ordinance of 1787. The Dane point of view is well presented, first, in Dane's own letter to Webster, printed in the Proceedings of the Massachusetts Historical Society, February, 1869, and, secondly, in Spencer's History of the United States' (ii., 202-9), which contains a letter of Dane to Rufus King, written shortly after the passage of the Ordinance. Broader than these partisan views are the judgment of Peter Force in the National Intelligencer, August 26, 1847 (reprinted in the St. Clair Papers); of W. F. Poole, in the North American Review, April, 1876; and of the editor of the St. Clair Papers, who follows Mr. Poole in the view that the Ordinance was passed at the instance of Dr. Manasseh Cutler, Ministerial Agent for the Ohio company, composed of New England men, and with power from them and others to negotiate the purchase of 5,000,000 acres of land, but suggests that Mr. Poole "gives too little consideration to the influence of others." Mr. Smith mentions the influence of St. Clair, who, by virtue of his position as President of Congress, appointed a committee favorable to Dr. Cutler's scheme, and thus supplemented the efforts of that estimable divine, from Ipswich, Massachusetts, who, in these degenerate times, would perhaps be called a lobbyist. Mr. Poole, if we understand him, does not claim that Dr. Cutler actually framed the Ordinance, but that he influenced its revision and successful passage. Mr. Smith's view that there were "many authors" is sound. The Ordinance of 1787, like all products of wise legislation, was created not by one man or one section of country, but by the concurrent wisdom of many men and by the unanimous vote of Congress. Jefferson and Dane, Pickering and King, of Massachusetts, Carrington and Lee, of Virginia, Kean, of South Carolina, and Smith, of New York, the moral and educational interests of New England (represented by Dr. Cutler), the economic interests of the whole country (providing for its public debts by the sale of public lands), the "private speculation" of “many of the principal characters in America" (Cutler's Diary), the personal popularity of St. Clair with the Southern party, which wished to reimburse the General for his Revolutionary losses by

powers from the consent of the governed. Madison, in a contribution to the Federalist, avails himself of this fact, that Congress was already exercising sovereignty, as an argument for establishing constitutional government with defined powers. "It is now no longer a point of speculation and hope," he says, "that the western territory is a mine of vast wealth to the United States: Congress have assumed the administration of this stock. They have

making him Governor of the Northwest-all these influences, and many more besides, entered into the formation and adoption of the Ordinance of 1787.

The germ of this Magna Charta of the West lay in Jefferson's idea of "a charter of compact," the articles of which should "stand as fundamental constitutions ["conditions" Mr. Smith and Peter Force have it, cf. Journals of Congress, iv., 380] between the thirteen original States, and each of the several States now newly described," which Jefferson, according to the first draft which Peter Force copied, would have named Sylvania, Michigania, Cheronesus, Assenisipia (from Assenisipi or Rock River), Metropotamia, Illinoia, Saratoga, Washington, Polypotamia, and Pelisipia! The country has escaped some of Jefferson's fancies, but his idea of a federal compact between the East and West was good, and it was adopted by Congress April 23, 1 1784, and re-adopted July 13, 1787, in the so-called "articles of compact," which, as Nathan Dane said to Webster, are the most important part of the Ordinance and were made "to endure forever." Federal unity with the great West was a Jeffersonian idea, and it was the main idea of the Ordinance. The anti-slavery clause, which Jefferson would have applied to the entire West without any Ohio or Missouri compromise, was only a corollary to his main proposition. The fugitive-slave clause, introduced by the consent of the North into the noble Ordinance of 1787, was perhaps another corollary; but it was not drawn by Jefferson. The original idea of a compact grew, according to principles of natural selection, from its Congressional environment. The representatives of Virginia introduced a saving clause in favor of the laws and customs of the French villagers beyond the Ohio, who had "professed themselves citizens of Virginia.' Massachusetts, through the legal knowledge of Nathan Dane and the diplomacy of Dr. Cutler, provided for the welfare of her colonists by incorporating principles from her own Constitution of 1780, which, like all State governments in America at that time, was based upon old English institutions, the Bill of Rights, and the Common Law. Such was the origin of the Ordinance of 1787-not a sudden creation, but a slow, historic growth, the product of many minds and many interests working toward a common end.

did he become Lov?

begun to render it productive. Congress have undertaken to do more:-they have proceeded to form new States; to erect temporary governments; to appoint officers for them; and to prescribe the conditions on which such States shall be admitted into the confederacy. All this has been done, and done without the least color of constitutional authority. Yet no blame has been whispered: no alarm has been sounded. A great and independent fund of revenue is passing into the hands of a single body of men, who can raise troops to an indefinite number, and appropriate money to their support for an indefinite period of time. . . . I mean not by anything here said to throw censure on the measures which have been pursued by Congress. I am sensible they could not have done otherwise. The public interest, the necessity of the case, imposed upon them the task of overleaping their constitutional limits.""

Madison here reveals the true basis of political sovereignty. Public good and the necessities of the territorial situation are the sovereign law of every political commonwealth. The fundamental idea of a republic is the common good (respublica) and the radical notion of politics (nós) is government of civil society, which is first united by material interests. The good old word commonwealth best expresses to the English mind not only the controlling principle of state-life which is the common weal, but the necessary condition of political existence which is the possession of a common country or territorial domain.

It was the public interest of the original States in the western lands, as a means of satisfying army claims and defraying the expenses of the war, which held together thirteen de facto sovereign powers after independence had been achieved and the recommendations of Congress had become a laughing-stock. The Confederation, in itself, was a mere league and Congress little more than a committee of

1

Federalist No. 38., Jan. 15, 1788. (Edition of J. C. Hamilton, 1875, p. 299.)