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Show 72 HISTORY OF PUBLIC LAND LAW DEVELOPMENT The Northwest Ordinance of 1787 In the territory the Ohio Company and the enlarged Scioto Company had proposed to settle, the need for a government made necessary the establishment of a territorial policy. Jefferson's Ordinance of 1784 had not been placed in operation, as has been seen, since all the states had not then ceded their claims. There was marked opposition to the ordinance because of the artificial character of the territorial boundaries it proposed and because it allowed the people of the territories self-government without delay. By virtue of the cessions (with the exceptions previously noted), the United States had come into possession of all the land south of Canada, north of the Ohio, west of Pennsylvania, and east of the Mississippi. Maryland, Delaware, and New Jersey had insisted that control over these lands should be guaranteed to Congress. This insistence was undoubtedly rejated to the question of title to these lands but below the tangible issues there lurked a problem of a more fundamental nature: the validity of the cessions as they were related to the power of the Confederation Congress to accept them and to legislate concerning them. Thus, for example, although Virginia had conceded power to the Congress to govern the territory north of the Ohio, the power was wanting in the Articles of Confederation to admit any new states into the Union. As a consequence, although technically the Northwest Territory was to be disposed of for the benefit of all the states, in a geographic and economic sense, the greater part of this area remained tied to Virginia politically until some legal way could be found for forming and admitting new states. In 1787 the Congress of the Confederation replaced the Ordinance of 1784, which would have given self-government to the people in the territory at the outset, with the Northwest Ordinance that provided three stages of government before the people of the territory could enjoy the same political privileges as the other states. In the first stage, authority was to be exercised by appointees of the national government; in the second, it was to be shared by these appointees and a representative assembly with the governor still appointed by the President; and in the third stage, the state was to be admitted to the Union on equality with the old states, after drafting its own constitution, creating its own machinery of government, and determining the qualifications for voting and holding office.33 Without express authority, the Congress of the Confederation assumed the power not only to dispose of the ceded lands, but to institute governments, make laws for their inhabitants, and admit new states. It acted under the cessions, which granted jurisdiction as well as the soil to the United States, and provided for the government of the territory by the Northwest Ordinance while the Constitutional Convention was in session in Philadelphia and while the problem of creating and admitting new states was still under discussion. In notifying Washington of the adoption of the ordinance, Richard Henry Lee explained the step was taken "preparatory to the sale of the lands. It seemed necessary, for the security of property among uninformed, and perhaps licentious people as the greater part of those who go there are, that a strong toned government should exist, and the rights of property be clearly de- 33 Donaldson, The Public Domain, pp. 155-56. Edward Carrington, Virginia delegate to the Congress, writing to Jefferson, October 23, 1787, said: "The Western Territory belonging to the United States has more effectually received the attention of Congress during this session than it ever did before, inclosed you will receive the ordinance for establishing a Temporary government there, and providing for its more easy passage into permanent state governments, under the old arrangements the country might upon the whole have become very populous, and yet be inadmissable to the rights of state government, which would have been disgusting to them and ultimately inconvenient for the Empire." Burnett, Letters, VIII, 6W). |