The national land system, 1785-1820

Preface

It is the purpose of this study to show how the national public lands passed into private ownership during the first great period of our land system. It is concerned, therefore, only with the disposal of the lands by the nation, it does not presume to discuss the uses to which the lands were put. It considers the land grants for education, for example, merely as a way in which great areas passed from the public domain to the control of the States; it does not work out the management of those grants. In short, it deals with the origin of the public domain and with every form of disposition which was in use before 1820.

Some explanation may be necessary for the choice of 1820 as the termination of this study. That date marks the close of the first great period in the history of the national land system. Between 1776 and 1820 the public domain had been formed, the land system had been organized, the granting of land for education and military services had been introduced, and grants for internal improvements had been discussed, while the methods for confirming foreign titles had been well worked out. But especially it was the period of the credit system, the operation of which well deserves consideration. There may be some difference of opinion as to the other periods into which a study of the land system

PREFACE

may be divided. I would have the second end with the Preemption Act of 1841, the third with the Homestead Act of 1862, and the fourth with the rise of the Conservation Movement, which certainly marks a new period in our land history.

John Fiske has told us that "questions about public lands are often regarded as the driest of historical deadwood. Discussions about them in newspapers and magazines belong to the class of articles which the general reader usually skips. Yet there is a great deal of the philosophy of history wrapped up in this subject." And he was very near the truth. A transaction with the land office was a very unromantic performance, and yet it was of great importance in the life of the settler. And if the subject is dull in itself it is closely related to some of the most interesting phases of our history. Without some knowledge of the land system a study of the westward movement would be only superficial, and a large part of the history of the West must be written in terms of land.

It is a pleasure to acknowledge here my indebtedness to Professor Max Farrand, of Yale University, who first called my attention to the importance of this subject, and to my colleagues, Professor E. D. Adams and Professor H. E. Bolton, who have offered valuable suggestions. The map of the Indian Cessions was based on the excellent collection in the Eighteenth Annual Report of the Bureau of Ethnology.

Payson J. Treat.

Contents

I. The Origin of the Public Domain . . 1

A national government did not imply a national land system — The charter claims of the colonies — Objections raised by the non-claimant states — ■ Confusion of boundary lines — Congress refused to set limits to the states — Position taken by Maryland — New York solved the problem by ceding her western lands — The other claimant states followed — The public domain formed — Its political significance — Stipulations contained in the deeds — Cessions of North Carolina and Georgia made after the adoption of the Constitution. Summary of the cessions.

II. The Origin of the Federal Land System . 15 The lands considered a source of revenue — Indian title delayed plans for disposal — Pelatiah Webster presented a plan containing many features of the later Ordinance — Connecticut insisted upon the township system — The Army plan. The Financiers' plan — The committee of 1784 — New England and Southern land systems compared — Proposed land ordinance of 1784 — ■ Recommendations of Washington — New Committee of 1785 — Grayson's account of their deliberations — Ordinance amended and passed — Influence of Timothy Pickering — Ordinance of 1785 a compromise between the two sectional land systems.

Appendix

1 Area of the state cessions 395

2 Ordinance of 1785 395

3 Extension of the land system — amount of land

surveyed and sold 401

4 Distances between the land offices .... 402

5 Estimated area of Indian cessions .... 404

6 Land sales by land offices, 1800-1807 ... 406

9 Lands sold, receipts and balances unpaid . . 410

LIST OF MAPS

PAGE

2. Land Offices, 1821 174

3. Diagrams showing subdivisions of public lands . 181

4. Ohio, showing land divisions 185

5. Tennessee and Mississippi Territory, showing, the

Congressional Line and the Yazoo claims . . 348

Chapter I

A study of the American Land System should of necessity commence with some discussion of the origin of the public domain. Before the Revolution the various colonies had for years been engaged in the disposal of land and several distinct systems had been developed based upon differing physical and economic conditions, but no uniform system could, under the circumstances, be worked out. Nor did the establishment of a central government necessarily mean that a national land system could be inaugurated. The very nature of the loose defensive union of the thirteen colonies precluded any grant of power to a central legislature over the lands within the states, while at the commencement of the Revolution the idea of national lands outside the boundaries of the states had not developed. Under these circumstances there could be no field for national land legislation. At first the object of the struggling patriots was to assert as large territorial claims as possible for the United Colonies so that when independence was achieved the new nation would possess an extensive area. This could

J be easily done because six of the colonies had sea to sea claims based on their ancient charters. These parchments of Massachusetts, Connecticut, Vir- / ginia, North Carolina, South Carolina, and Georgia were considered good against England for the land as far west as the Mississippi, while New York had a supporting claim, as suzerain of the Iroquois Indians, to the country west of the Delaware River. Franklin's draft of the Articles of Confederation of May 10, 1775, shows that at that time the charter claims of these colonies were not contested.

Hut soon this first assertion was questioned. Six of the states had very definite boundaries and they could present no charter claims to the rich lands beyond the Alleghanies. They then believed that, even should the western lands be held against England as parts of the states, nevertheless Congress should have the power to limit the boundaries of the great states, and to erect new colonies. This was shown in the Dickinson draft of the Articles of Confederation of July 12, 1776, but the clause was struck out in the Committee of the Whole. From this arose a number of questions regarding the ownership of the lands beyond the Alleghanies which developed into one of the most perplexing domestic problems confronting the new nation, and one which had to be settled wisely and well.

First came the question, do the lands beyond the mountains belong to the claimant states under their charters or to the United States as the result of a successful revolution? Algainst charter claims were cited the Royal Proclamation of 1763, 1 which restricted the right of the colonies to grant lands west of the headwaters of streams flowing into the Atlantic, and the Quebec Act of 1774, which attached the country north of the Ohio River to the Province of Quebec. And before this question was answered there arose another : if the lands belong to the states, then to which states, for conflicting claims had already arisen under the ancient charters ?

It was the presence of these conflicting claims in the west which made the later public domain possible. If the claims of the various states to the western lands had been well founded it is doubtful if any dispute would have arisen. Virginia held unquestioned vast unappropriated areas east of the mountains, and Massachusetts possessed great vacant tracts in Maine. But no state could present a claim to the western lands which could not be questioned, many people thinking the Proclamation of 1763 and the Quebec Act limited all the colonies to the mountains. In the northwest four states claimed lands with overlapping bounds, and this would present a serious problem in boundary adjustment should the charter claims be accepted.

It seemed unwise to Congress to raise these questions during the actual struggle with Great Britain. In order to make the position of the United States as strong as possible it would make use of both

i Alvord, The Genesis of the Proclamation of 1763, Mich. Hist. and Pioneer Soc. Collection, v. 39, p. 52. " The proclamation did not set western limits to the colonies, nor was such the intention of the ministry at the time."

theories. 2 It would maintain the sea to sea claims of the states, and, should these be denied, it would claim the western lands as successor to the rights of the King of England.

The small states, with fixed boundaries, early questioned the territorial claims of the seven larger ones. It was Maryland who persistently attacked the theory of the state claims to the west. Over against it she argued for a common right and a common ownership. At first she would waive any discussion of the charter claims provided that Congress was authorized to fix the western boundaries of the claimant states. This was the position taken by Dickinson in 1776 and Maryland alone voted for it on October 15, 1777. 3 Rhode Island, New Jersey and Delaware opposed the land claims, but on financial grounds, for they were willing that the sovereignty over the lands should be vested in the claimant states provided the lands themselves pass to the United States. 4 In spite of their protests a clause was added to the proposed Articles of Confederation, on October 27, 1777, which, after setting up a Court of Commissioners to determine disputed boundary claims, provided also " that no state shall be deprived of territory for the benefit of the United States. 5

Although defeated in Congress the small states did not give up the fight. In 1778 Rhode Island and New Jersey presented amendments to the proposed

2' See Thompson Papers, N. Y. Historical Col. 1878, 109-141. 3 J. IX., 807. * Adams, 23. s J. IX., 843.

Articles of Confederation which would turn all the crown lands within the states over to the United States, while the sovereignty would remain in the states 6 . These amendments were overwhelmingly defeated and it was well that such was the case for national sovereignty as well as common ownership of the western lands was necessary. It was the great service of Maryland to render this possible.

The part she played in causing the claimant states to cede their western lands need not be detailed here. 7 Maintaining that they had " not the least shadow of exclusive right," and that the unsettled country, " if wrested from the common enemy by the blood and treasure of the thirteen states, should be considered as common property," 8 subject to the control of Congress, she refused to ratify the Articles of Confederaton until the disputed question was in some way settled. Especially did she fear the financial and political benefits accruing to Virginia from her vast claimed lands.

Even if the position taken by Maryland and the other non-claimant states were correct it was unwise to insist upon it in opposition to the opinions of seven of the more powerful states. A denial of charter claims or an enforced curtailment of them would have been disastrous in those days of state jealousies. A much more expedient proposition was now suggested, one which avoided all discussion

8 Instruction to Delegates in Congress. Dec. 15, 1778. Read May 21, 1779. J. XIV., 619-622.

of territorial claims and aimed at the cession of the disputed land to the nation for the common good. An early proposal for cessions of western lands by the states was made by the Committee on Finance on September 19, 1778, 9 and a year later Virginia and the other states were urged to cease granting western lands during the continuance of the war.

This proved to be a real solution of the problem. New York offered to cede her western lands, without reserve, in 1780. Virginia made a first, but unsatisfactory, offer in January, 1781, and a month later Maryand ratified the Articles of Confedera- J tion. Between 1782 and 1802 the seven claimant states made cessions of their western lands, and by the latter date the public domain covered all the territory between the Alleghanies and the Mississippi, with the exception of Kentucky, which was reserved by Virginia and later erected as a state, and of the Connecticut Reserve in Ohio. In bringing about these cessions the influence of Maryland was negative while that of New York was positive. Both states deserve great credit. 10

With these cessions the public domain was formed. From a political point of view they were most important. They were a pre-requisite to the io For the cessions see Adams, Maryland's Influence upon Land Cessions to the United States. J. H. Univ. Studies, 3d series. Sato, History of the Land Question in the United States. J. H. Univ. Studies, 4th series. Welling, The Land Politics of the United States. Papers of the N. Y. Hist. Society, 1888.

completion of the Confederation, although the first one was not perfected until twenty months after the ratification of Maryland. With them vanished the fear of any enormous development in wealth and power on the part of the favored states, and the settlement of conflicting boundary lines was avoided. The Congress of the Confederation exceeded its powers in accepting them and in providing a government for the lands which they covered. With the possession of a public domain, a " common estate," came a real bond of union in the critical period of the republic.

With the exception of the Connecticut Reserve all the cessions were of territory and jurisdiction. New York offered to cede soil and jurisdiction or to retain all or part of the jurisdiction. Connecticut, in her offer of October 10, 1780, proposed to cede the soil but retain the jurisdiction. This would have proven acceptable to some of the states, and even Alexander Hamilton had agreed that the jurisdiction over the land should remain in the states. 11

Such cessions of territory would have created a public domain, but the controversy which would have arisen over the conflicting claims to jurisdiction in the northwest might have wrecked the infant nation. Maryland feared the political power which so large an extent of authority would give the claimant states. It is easy to understand how perfect a solution was found when unquestioned cessions of

ii Hamilton Works, I.. 262.

soil and jurisdiction were effected. Controversies between the states were quieted, the central government gained political and financial strength, and a uniform system for the control and disposal of the western lands was rendered possible. 12

Of the seven deeds of cession three were without conditions of any kind while four contained stipulations which are more carefully discussed in another chapter. 13 New York defined her own limits and ceded her right to the lands northward and westward of these boundaries, without condition as to disposition. Virginia ceded all right, title and claim " to the territory or tract of country within the limits of the Virginia charter " lying northwest of the Ohio River. No mention was made of the claim of Virginia to Kentucky, although the first offer of 1781 had included a provision that this territory should be guaranteed to Virginia. In 1783 Congress had refused to make such a guarantee. 14

12 The importance of the fact that the first cessions were of disputed claims should be noted here. Virginia, New York, Pennsylvania, and Massachusetts all retained unoccupied land which they continued to dispose for some years. At a later period Massachusetts was accused of selfishness in not ceding her unappropriated lands in Maine. Such a charge is not to the point. These lands were never " crown lands " in the sense of the term as used after 1763. No other state could lay claim to them, and although a cession of them to the United States would have added strength to the nation it was not seriously demanded nor expected. The lands ceded later by North Carolina, South Carolina and Georgia were considered crown lands according to the Proclamation of 1763.

is Donaldson, 65-82 for deeds ; 8£"-86 for reservations, also see Chap. 13.

Virginia incorporated certain conditions in her deed of 1784. The territory ceded should be laid out into states ; the expense incurred by Virginia in conquering and holding this country should be reimbursed by the general government; the French inhabitants and other settlers at Kaskaskia, Vincennes and the neighboring settlements, who had professed themselves citizens of Virginia, should have their possessions and titles confirmed to them; one hundred and fifty thousand acres should be laid off for General George Rogers Clark and his men, who had conquered the Illinois country for Virginia; and lands should be reserved between the Scioto and the Little Miami rivers for the military bounties promised by Virginia to her troops upon continental establishment should there be an insufficient quantity of good land in the tract already reserved for them in Kentucky. But the most important provision was as follows : all lands in the ceded territory, not covered by the above reservations or by the bounties promised by Congress to the Continental Army " shall be considered as a common fund for the use and benefit of such of the United States as have become, or shall become members of the Confederation or Federal Alliance of the said states, Virginia inclusive, according to their usual respective proportions in the general charge and expenditure, and shall be faithfully and bona fide disposed of for that purpose, and for no other use or purpose whatsoever."

Of all the conditions made by the states this one is the most important. From this time rarely could a proposition to cede or grant lands be made in Congress without giving rise to these inquiries : is it for the common good? will it be a bona fide disposition of a common property? North Carolina and Georgia later inserted this condition in their deeds.

The Massachusetts cession was without reserve. It covered the lands claimed under her charter, west of the western boundary of New York. 15

Connecticut, however, was apparently less generous, and she retained a " western reserve " of some 3,800,000 acres which was used as a fund to reimburse sufferers during the raids of the Revolutionary War, as well as to form a basis for the present school fund of the state. In the reserve, which extended for one hundred and twenty miles west from the Pennsylvania line, Connecticut re-

15 Massachusetts and New York both claimed the lands in western New York. In 1784, a federal court was appointed, under the Articles of Confederation, to determine the dispute. Massachusetts claimed the land under her charter, New York claimed it as suzerain of the Iroquois. The dispute was settled amicably, without reference to the court, in 1786, Massachusetts receiving the soil and New York the jurisdiction of the lands in question. This compromise gave a more definite sanction to the claim Of Massachusetts to the western lands than did the mere acceptance of the Massachusetts cession by Congress, for in the latter instance no investigation of the soundness of the claim was made. This is the more interesting because a similar claim of Connecticut for land in Pennsylvania was rejected by the Federal Commissioners at Trenton in 1782, but the charter rights were apparently affirmed by the acceptance of her cession by Congress. It should be noted that the disputed lands in Pennsylvania had been actually granted to Penn by charter. New York had no such claim to the lands in the western part of the present state.

tained both soil and jurisdiction. In 1797 she offered to cede the jurisdiction over the reserve and in 1800, after some discussion, Congress passed an act of acceptance. Thirty years later, when the land question assumed a sectional aspect, Connecticut and Massachusetts were held up as selfish commonwealths in contrast with the magnanimous conduct of Virginia and the Southern states. In extenuation it should be remembered that at the time of the cessions Connecticut was the only state ceding claims which did not possess unoccupied lands. Massachusetts, New York, Virginia, and the Southern states all held within their accepted boundaries considerable areas of which they were disposing. Her claims to the Wyoming country had been defeated and Pennsylvania had profited thereby, it was not unreasonable for her to endeavor to retain some of her domain. These facts caused the acceptance of the cession of 1786, a cession which allowed her to retain land already ceded to the Union by both New York and Virginia, and in fact violated the conditions of the Virginia cession.

These cessions covered the territory of the old Northwest. The United States secured jurisdiction over all but the Connecticut Reserve, and over this in 1800. But as has been shown, not all this country came into the public domain for the French settlers and others had claims which must be confirmed, while the military bounties of Virginia had also to be satisfied.

Under the Confederation only one cession was

• made south of the Ohio. South Carolina, in 1787, ceded a narrow strip, twelve miles wide, from her western limits to the Mississippi, and this cession, made without condition or reserve, was " for the benefit of the said states." For several years this tiny bit of land was entirely cut off from the rest of the public domain, until it was annexed to the North Carolina cession later.

Some political importance has been attached to the fact that five of the state cessions were made under the Confederation and two under the present Constitution. The Articles of Confederation conferred no power on Congress to receive or govern any common lands, but Congress assumed the power. In order to remedy this omission the new Constitution provided that " the Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States." From time to time the question was raised as to whether the Constitution superceded the prior deeds of cession, for if it did the stipulations of the deeds would not be binding. The issue was never fairly joined although the Supreme Court has held that the power of Congress over the public lands was "without limitation," 16 and as the grantor states ratified the Constitution it might be assumed that they waived their former conditions. As a matter of fact the conditions in the deeds were in every case faithfully carried out, unless the strictest possible

16 U. S. v. Gratiot, 14 Peters, 526.

construction is placed on the general provisions of the Virginia and Georgia articles.

In another chapter 17 the cessions of North Carolina and Georgia are discussed at some length. Made respectively in 1790 and 1802, after the westward migration had commenced, it goes without saying that considerable portions of their western lands had been sold or granted away. In the North Carolina cession the soil was so covered with warrants, surveys, and patents, that it was never brought under the national land system nor disposed of in the usual manner, while in the southwest the Yazoo land claims caused considerable annoyance for investors, settlers, and Congress.

Thus, in briefest fashion, the origin of the Public Domain has been outlined. Primarily the result of the successful issue of the Revolution, it stands, however, as the result of the cessions by the states themselves. Such a solution avoided the host of controversies which the conflicting claims of state against nation and state against state would have produced. In some cases the titles which the states passed were of questionable validity, but as all the states quit-claimed their rights the central government did not need to search the title, it was only when states tried to reserve land for themselves that any question was raised. But before any of the cessions were completed a discussion had arisen as to the proper disposition of the new domain.

J

CESSIONS OF WESTERN LANDS

1780, Feb. 19. Act of New York Legislature. March 7. Laid before Congress.

Oct. 10. Act of Connecticut Legislature.

1781, Jan. 2. Act of Virginia Legislature.

Mar. 1. New York deed of cession executed in Congress.

1782, Oct. 29. New York cession accepted by Congress.

1783, Sept. 13. Virginia cession rejected. Oct. 20. Second Virginia Act.

1784, March 1. Virginia cession completed. June 2. Act of North Carolina Legislature. Nov. 13. Act of Massachusetts Legislature.

Nov. 20. Act of North Carolina Legislature repealed.

1785, Apr. 19. Massachusetts cession completed.

1786, May 11. Second Act of Connecticut Legislature. May 26. Connecticut cession completed.

1787, March 8. Act of South Carolina Legislature. August 9. South Carolina cession completed.

1788, Feb. 1. First Act of Georgia Legislature. July 15. Georgia offer rejected.

1789, Dec. 2 C J. Act of North Carolina Legislature.

1790, Feb. 25, North Carolina cession completed.

1802, April 24. Articles of Agreement and Cession entered into between the Commissioners of the United States and of Georgia.

June 16. Ratified by the Georgia Legislature.

Chapter II The Origin Of The Federal Land System

The acquisition of the public domain made possible a national system, and Congress was called upon to regulate the disposal of the western lands. The discussions of the past few years had revealed a general agreement of opinion as to the policy which should control the land system. The lands were considered primarily as a source of revenue, and Congress was expected to so provide that the lands would serve to relieve the financial burdens of the struggling nation. Every thoughtful citizen could appreciate the financial possibilities of the new domain, although the tendency was to exaggerate the immediate value of the vacant lands. Speculations in land were not new in this country, great schemes had been under discussion in the western country even before the Revolution, and the New England colonies had at times profited through their land sales. To the south Virginia 1 and North Carolina 2 had opened land offices and expected to increase their annual revenue and to sink their public debt. It was very natural, therefore, for persons in and out of Congress to look upon the western lands as a valuable asset, which should be carefully managed. These acres were to be sold for a fair sum, and not to be given away as had so often been the case in colonial days.

Congress could not prepare a plan of disposal for the lands until the national title was clear to at least one section of the territory, and it was not until March, 1784, that the New York and Virginia cessions had quieted all claims to the southern portion of the old Northwest, while even then the Indian title remained to be dealt with. But before this time a plan had been published which merits more than a passing notice. Early in 1781, Pelatiah Webster, relying upon the future cessions of the states, had proposed a system for the disposal of the lands which is highly suggestive. 3

He dismissed with scant comment the proposal that the entire domain be sold or mortgaged to foreign states at the present time : " It would be like killing the goose that laid an egg every day in order to tear out at once all that was in her belly." Instead, the ceded territory should be carefully marked off from the unceded and intrusions on it should be rigidly prohibited. First, the land should be surveyed into townships 4 of six, eight or ten

3 In the collected essays of Pelatiah Webster this essay on the " Extent and Value of our Western Unlocated lands, and the Proper Method of disposing of them so as to gain the greatest possible Advantage f rota them " is stated to have been first published in Philadelphia on April 25th, 1781, but in Almon's " London Remembrancer " for 1782 the essay appears anonymously under the signature of " A Gentleman of Philadelphia " and the date of February 17, 1781.

* The township idea was early before Congress. In 1778 Congress offered land in townships of from 20,000 to 60,000 acres to Hessian deserters. The land was to be provided by the states. J. X. 405.

miles square ; then it should be sold at auction to the highest bidder, and the minimum price should be one Spanish dollar per acre; purchasers should be obliged to settle and improve the land within two or three years or forfeit the same ; and, finally, the townships should be laid out in courses or tiers, and should be sold in that fashion — only when one tier was settled should the next be placed on sale.

There were certain advantages in this system which the author proceeded to develop. It would push out settlements in close columns, much less assailable by the enemy and more easily defended. Laws, customs and police could be easily extended, and it would prevent one great abuse, that of the absentee proprietor profiting through the hardships and labors of the pioneers. The Indians should be kindly treated, and, in order to avoid friction, intruders should be removed, for Webster had little sympathy for settlers without permission — they merited punishment rather than reward. He held also that salt licks, coal and mineral lands should be reserved for the public use.