Mississippi and St. Lawrence were declared common highways, and forever free to all the citizens of the United States.

The fifth article related to the division of the Territory into States, and the boundaries of such States. The Territory had to be divided into not less than three nor more than five States. When the new States had a population of 60,000 free inhabitants, they could be admitted by their delegates into Congress on an equal footing with the original States. Then they could form, a permanent constitution and government in conformity to the principles contained in these articles. The sixth and last article, which brought about so much controversy with regard to its authorship, was in the following language: "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 service as aforesaid."

EULOGIES ON THE ORDINANCE OF 1787.

Such were the provisions of the charter of compact in this celebrated Ordinance of 1787, which superseded the resolutions of April 23, 1784, known as Jefferson's Ordinance. The act of 1787 became the corner-stone of territorial governments in the Western Territory. Statesmen and public writers have been loud in their praises of this ordinance not so much because of theoretical principles embodied in the ordinance as from its practical merits and from results at once and forever beneficial to the interests of the whole Union. "We are accustomed,"

1 The text of the ordinance may be found (1) in the Public Domain, 153-156; (2) in the St. Clair Papers, II, 612–618; (3) in the Journals of Congress, IV, 752-754; (4) in the Magazine of Western History, Nov. 1884, 56-59.

says Daniel Webster, "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. We see its consequences at this moment, and we shall never cease to see them, perhaps, while the Ohio shall flow." The words of Judge Timothy Walker are no less decided than those of his great contemporary. Judge Walker said, "Upon the surpassing excellence of this ordinance no language of panegyric would be extravagant. The Romans would have imagined some divine Egeria for its author. It approaches as nearly to absolute perfection as anything to be found in the legislation of mankind; for, after the experience of fifty years, it would perhaps be impossible to alter without marring it. In short, it is one of those matchless specimens of sagacious forecast which even the reckless spirit of innovation would not venture to assail. The emigrant knew beforehand that this was a land of the highest political as well as national promise, and, under the auspices of another Moses, he journeyed with confidence toward his new Canaan."

Eminent constitutional writers like Judge Story and Mr. Curtis are also among the admirers of the Ordinance of 1787. Here are the words of Mr. Curtis: "American legislation has never achieved anything more admirable as an internal government than this comprehensive scheme. Its provisions concerning the distribution of property, the principles of civil and religious liberty which it laid at the foundation of

1 Webster's Works, III, 263.

Transactions

An address delivered at Cincinnati, December 23, 1837. Ohio Hist. and Phil. Society, I, Part II, 189. Quoted by Mr. W. F. Poole in North American Review, April, 1876, and in the St. Clair Papers, I, 118.

Judge Story says, "The ordinance is remarkable for the brevity and exactness of its text, and for its masterly display of the fundamental principles of civil and religious liberty."-Story's Commentaries, III, 187.

the communities since established under its sway, and the efficient and simple organization by which it created the first machinery of civil society, are worthy of all the praise that has ever attended it. It was not a plan devised in the closet upon theoretical principles of abstract fitness. It is a constitution of government drawn by men who understood from experience the practical working of the principles which they undertook to embody. Those principles were, it is true, to be applied to a state of society not then formed, but they were taken from states of society in which they had been tried with success." Again, Mr. Chase, late Chief Justice of the United States, in the introduction to the "Statutes of Ohio," said, "Never, probably, in the history of the world did a measure of legislation so accurately fulfil, and yet so mightily exceed, the anticipations of the legislators. The ordinance has well been described as having been a pillar of cloud by day and of fire by night in the settlement and government of the Northwestern States."2

Many similar eulogies on the ordinance and its framers might be cited, but we shall be content with one more quotation, and that from an eminent authority, whose praise of the ordinance is somewhat more definite and precise than any of the eulogistic opinions hitherto quoted. Mr. Joseph S. Wilson, late Commissioner of the General Land Office, says, "This noble statute [referring to Section II. of the ordinance] struck the key-note of our liberal system of land law not only in the States formed out of the public domain, but also in the older States. The doctrine of tenure is entirely exploded; it has no existence. Though the word may be used for the sake of convenience, the last vestige of feudal import has been torn from it. The individual title derived from the government involves the entire transfer of the ownership of the soil. It is purely allodial, with all the incidents pertaining to that title as substantial as in the infancy of Teutonic civilization.

'Curtis' Constitutional History of the United States, I, 306–307. ? See W. F. Poole in North American Review, April, 1876, 234.

Following in the wake of this fundamental reform in our State land laws are several others which constitute appropriate corollaries. The statute of uses was never adopted in the public-land States, and hence the complex distinction between uses and trust has never embarrassed our jurisprudence. We have, however, adopted one of the methods of conveyance to which that statute gave rise to wit, the method of bargain and sale. Feoffments, fines and recoveries are entirely dispensed with, as also livery of seisin and its consequences. A conveyance is completed by the execution and delivery of the deed. Entailment and perpetuities are barred by the statute, which renders void all limitations beyond persons in being and their immediate issue, and which provides that an estate tail shall become a fee-simple in the heirs of the first grantor. All joint interests in land are reduced to tenancies in common. Joint tenancies never had an existence, and coparceners are now on a footing of tenants in common. Real actions, with their multitudinous technicalities, never had an existence in our Western jurisprudence, though some of the fictions of this form of action were and are still tolerated in some localities-e. g., the allowance of fictitious parties to a suit. Ejectment is now the universal remedy, being the only action for the recovery of lands. Action by ejectment is limited to twenty-one years, but refractory tenants may be more speedily dispossessed by the action for forcible entry and detainer. A dispossessed claimant may, at the option of the ejector, either pay for the land or receive pay for the improvements. For waste the party is liable in simple damages and no more. A tenant in dower forfeits the place wasted. In the older States we see evidences of the reflex benefits of the land legislation of our public-land States."

After quoting this able exposition, the Public Land Commission adds, "This great American charter contains the basic

'Land Office Report, 1870, 28-29.

propositions as to land tenures of the laws of the United States and of most of the States of the Confederation, and became and is the foundation of the same statutes in all the public-land States and Territories. Under its care and provisions the Central and Western States and Territories of the Union, and the States in the territory south of the river Ohio, have grown from weak and straggling settlements to mighty commonwealths and organizations containing more than 25,000,000 of people. The ordinance began with a wilderIts principles, embraced in existing laws, now govern in area and population the domain of an empire."

ness.

Such are the opinions of eminent authorities on the Ordinance of 1787. Indeed, the ordinance is a grand monument to American statesmanship, and will forever tower among the works of Federal legislation.

CONSTITUTIONALITY OF THE ORDINANCE.

Before we enter into the subject of the authorship of the ordinance, one word must be said touching its constitutionality. The Articles of Confederation made no provision for erecting the Territory into new States, and for admitting them into the Union. Therefore, the ordinance which extended national sovereignty over the new Territory was an unauthorized act. But the ordinance was a necessary sequence of the resolution of October 10, 1780. Virginia and other States quit-claimed the Western Territory, reposing faith in Congress that such an ordinance as that of 1787 would be issued by Congress in conformity to the resolution. Therefore, the root of constitutionality primarily lies in the resolution and not in the ordinance.

Although no constitutional question as to the validity of the ordinance was ever raised in Congress, yet contemporary statesmen seem to have been aware of its legal defects.

'Public Domain, 159.