Is Virginia Entitled to Compensation 
 
 for the Cession of the Northwest 
 
 Territory to the National 
 
 Government? 
 
 PAPER READ 
 
 BY 
 
 MR. E. HILTON JACKSON 
 
 OF WASHINGTON, D. C. 
 BEFORE THE 
 
 Virginia State Bar Association 
 
 AT THE HOTEL CHAMBERLIN, 
 
 OLD POINT, VA. 
 
 AUGUST 6th, 7th, 8th, 1912 
 
 KICHMONI>: 
 RICHMOND PRESS, INC. 
 
h56 
 
 c\ 
 
 (0;C!.A334554 
 
A FORE WORD. 
 
 In a paper of this character it is not easy to trace the sources 
 of information which enter into the conclusions reached, still 
 some effort in this direction should be made, because of the 
 labors of those who have preceded the writer in this interesting 
 line of investigation. 
 
 The mere suggestion that the State of Virginia, representing 
 herself and the other thirteen colonies, has a just claim against 
 the nation approximating the enormous sum of two hundred 
 million dollars and that any Court clothed with the necessary 
 jurisdiction to hear and determine the law and facts involved 
 would in all probability make such an award is a question that has 
 hitherto escaped both the attention of the historian and the 
 acumen of the legal profession. It is not believed, however, 
 that the inattention to which this matter has been subjected for 
 a century and a quarter relieves the Nation of the duty of dis- 
 charging a just liability, if such liability is found to exist, or the 
 States vitally concerned from the responsibility of pressing this 
 claim upon its attention. 
 
 The writer's interest in this general subject was first aroused 
 in 1906 when he was engaged In the preparation of a paper, 
 afterwards read before this Association, entitled "The Dismem- 
 berment of Virginia," at which time the imperial colonial posses- 
 sions of Virginia were found to be surpassed only by her striking 
 generosity in ceding these possessions to the Nation at a time 
 when their retention by her would have postponed indefinitely, 
 if not forever, the establishment in the western hemisphere of a 
 republic upon the federal principle. Nor is this generosity in 
 any wise diminished, if it be found that a fair interpretation of 
 the language of the deed of cession discloses that the nation 
 thereby became a trustee of a large part of this territory for the 
 benefit of Virginia and the remaining thirteen colonies, with 
 respect to which trust there has been no accounting whatever 
 by the nation in favor of the states interested. 
 
 More recently the writer's attention was directed to this 
 subject by the bill introduced in the Senate on April 10, 1912, by 
 
•2 
 
 Senator Chilton, of West Virginia, "TO PROVIDE FOR THE 
 BRINGING OF SUITS AGAINST THE UNITED STATES 
 BY VIRGINIA, WEST VIRGINIA, KENTUCKY" and the 
 remaining thirteen colonies. 
 
 The bill had its indirect origin in a detailed statement of the 
 claim compiled by Dr. R. B. Fulton and subsequently used as 
 the basis of a message of Governor Claude A. Swanson, dated 
 January 24, 1910, to the GENERAL ASSEMBLY OF VIR- 
 GINIA, suggesting that it take appropriate action to have the 
 claim adjudicated. 
 
 The public documents bearing upon the question of Virginia's 
 title to the land ceded and the disposition made thereof by Con- 
 gress may be found in the History of the Public Domain by Don- 
 aldson, and the Land Laws of the United States, which have been 
 of untold value in the preparation of this paper. 
 
 Some of the sources of information to which the writer is 
 indebted are: "The Northwest Under Three Flags," Charles 
 Moore, "Ordinance of 1787," Edward Coles, "Critical Period of 
 American History," John Fiske, "Maryland's Influence Upon 
 Land Cessions to the United States," H. B. Adams, "Ordinance 
 of 1787," F. D. Stone, "The Old Northwest," Hindsale, "Twenty 
 Years in Congress," Blaine, "Handley's Lessee v. Anthony, 5 
 Wheaton, Johnson v. Mcintosh, 8 Wheaton, Commonwealth 
 V. Garner, 3 Grattan, Hening's Statutes at large, Virginia. 
 
 The writer has been unable to persuade himself that some 
 way cannot be found whereby West Virginia, Kentucky and the 
 thirteen States may co-operate, through their representatives 
 in Congress, to the end that some just and equitable settlement 
 may be made. 
 
 While the method of settlement herein suggested contemplates 
 that the claim may be more satisfactorily disposed of by some 
 already existing tribunal previously clothed with jurisdiction 
 to hear and determine all the issues of fact and law involved, yet, 
 to the writer's mind the method adopted is of no great import- 
 ance. 
 
 E. Hilton Jackson. 
 
Is Virginia Entitled to Compensation 
 
 for the Cession of the Northwest 
 
 Territory to the National 
 
 Government? 
 
 Paper Read by MR. E. HILTON JACKSON, of Washington, 
 
 D. C. 
 
 I. 
 
 The Title of Virginia to the Northwest Territory Em- 
 braced IN the Deed of Cession of March 1, 1784. 
 
 It would be signal error to suppose that Virginia contrib- 
 uted only men and measures to the making of this nation. From 
 her original territory, known as Raleigh's Virginia, extending 
 from the Floridas to Canada, New England, New Netherlands, 
 Maryland and the Carolinas, had been taken by successive char- 
 ters, still leaving, however, her domain sufficiently ample to 
 ensure to her the proud title of "The Mother of the States." 
 After being thus dismembered, she, by voluntary deed of cession 
 of March 1, 1784, duly signed, sealed and delivered by her ac- 
 credited representatives in the Continental Congress, gave to 
 the nation an empire larger than any in Europe save Russia, 
 comprising an area washed on its triangular sides by three thous- 
 and miles of navigable waters, on the north by the Great Lakes, 
 embracing one-half of the fresh water of the globe, and on the 
 west by a river whose volume equals that of all the rivers of Eu- 
 rope save only the Volga. Some slight conception of the ex- 
 
4 
 
 tent and importance of this cession may be had when we reflect 
 that the territory thus ceded contains by United States survey 
 265,878 square miles, or 170,208,613 acres, and that out of it 
 the great States of Ohio, Indiana, Illinois, Michigan, Wisconsin, 
 and all of Minnesota lying east of the Mississippi have been 
 formed — a territory that played a more important part in the 
 subsequent history of this nation than all other acquisitions, and, 
 as incidental to the mighty role, has furnished three of the Chief 
 Justices and eight of the Chief Magistrates of the Republic. 
 One of the latter, to-wit, James A. Garfield, has made a valuable 
 contribution to this subject in the form of an address, entitled 
 "The Northwest Territory and the Western Reserve." 
 
 Before the other issues raised by this subject can be adequately 
 considered, Virginia's title to this vast region must be subjected 
 to impartial scrutiny. Did she have anything to give? Was 
 her title, however acquired, such as to enable the nation to whom 
 it was ceded to hold it against all comers? Or was this title a 
 mere inchoate and ill-defined claim, giving to the sovereign gran- 
 tee only a mere right of action that thereafter must be reduced 
 to possession and ov/nership? No full answer can be made to 
 these inquiries without examination into the several methods of 
 acquiring title to territory on the North American Continent. 
 
 The European nations interested in the acquisition and ex- 
 ploitation of land in the Western Hemisphere gave full assent 
 to the doctrine that discovery gave title to the government by 
 whose subjects it was made against all other nations, and that 
 this title might afterwards be perfected by possession. Not the 
 slightest difficulty was found in disposing of the title of the origi- 
 nal inhabitants, who, after such discovery and occupation, were 
 held by principles of international law, recognized at the first op- 
 portunity by the Supreme Court of the United States, to have 
 only a right to its use and occupancy, the consideration appar- 
 ently going to these benighted peoples in exchange for the un- 
 limited independence theretofore enjoyed, being the blessings 
 of civilization and Christianity — a boon which they neither 
 sought nor desired. It followed as a natural sequence that an\- 
 of the European nations, having thus acquired lands, might con- 
 vey by grant or otherAvise a good title thereto, subject only to 
 
the Indian right of occupancy, the discovery also giving to the 
 discovering nation the exclusive right to extinguish the Indian 
 right of occupancy either by purchase or conquest. How far 
 this title has thus been extinguished let history answer. England 
 granted a commission, during the reign of Henry VII to Sebas- 
 tian Cabot in 1496, to discover countries unknown to Christian 
 people and to take possession of them in the name of her king. 
 Two years later Cabot discovered the Continent of North Amer- 
 ica, sailing as far south as Virginia, and to this discovery the 
 English trace their title. This doctrine later found recognition 
 in the charter granted to Sir Humphrey Gilbert in 1578, which 
 authorized him to discover and to take possession of such heathen 
 lands as were not actually possessed by any Christian prince or 
 people. This charter was afterwards renewed, in substance, 
 by Queen Elizabeth to Sir Walter Raleigh in 1585. France, it 
 may be asserted from a fair reading of history, first occupied the 
 Northwest and established her trade from the St. Lawrence to 
 the Mississippi, and it was not until a century later that the 
 English Colonies, chiefly Virginia, having crossed the AUe- 
 ghanies, came into collision with France. To some extent, how- 
 ever, the discovery and occupation by France and Great Britain 
 of the territory east and west of the Mississippi was contempo- 
 raneous and involved these nations in contests which were not 
 settled until the treaty of Paris in 1763. By this treaty the Mis- 
 sissippi was irrevocably fixed as the boundary line between the 
 territories of France and Great Britain. With the checkered 
 career of the territory thus ceded to France and afterwards 
 known as the "Louisiana Purchase", the title to which, owing 
 to the necessities of the First Napoleon, became vested in the 
 United States April 30, 1803, this paper has nothing to do. We 
 are alone interested at this time in fixing the title of the North- 
 west territory in Great Britain by the treaty of Paris, thus vi- 
 talizing and giving definition to the language of the charter of 
 Virginia, which was broad enough to cover any territory in the 
 Northwest, the title to which was recognized to be in Great 
 Britain. At this time Virginia, being a royal colony, became the 
 repository of whatever title Great Britain possessed. 
 
 The settlement in Jamestown in 1607 was made pursuant to 
 
the terms of a charter granted April 10th, 1606, by James I, but 
 soon thereafter, May 23d, 1609, the first charter proving unsatis- 
 factory, the same sovereign issued a second charter, in which the 
 metes and bounds of the Colonj^ were specifically set forth as 
 follows: "Situate, lying and being in that part of America called 
 Virginia, from the point of land called Cape or Point Comfort, 
 all along the sea coast to the northward 200 miles, and from the 
 said point ot Cape Comfort all along the sea coast to the south- 
 ward 200 miles and all that space and circuit of land lying from 
 the sea coast of the precinct aforesaid up into the land through- 
 out from sea to sea.'' 
 
 A third charter, dated March 12th, 1612, annexed to Virginia 
 all the islands within three hundred leagues of the coast. These 
 three charters were vacated, but both James I and Charles I ex- 
 pressly declared that the annulling of the charters simply abol- 
 ished the sovereignty that had been ceded to the Virginia Com- 
 pany and did not infringe or diminish the territorial rights of the 
 colony. 
 
 Subsequently other charters were granted by Great Britain 
 to the colonies of Maryland, Pennsylvania, and North and South 
 Carolina, with the result that the different colonies claimed own- 
 ership of the same territory, and often claimed under conflict- 
 ing authorities, growing out of the ill-defined grants made by the 
 different sovereigns of Great Britain covering land in America, 
 in royal ignorance of the extent and configuration of these lands. 
 After her organization into a sovereign State, Virginia did much 
 to end the controversy between herself and the above mentioned 
 States, by incorporating a provision in her first Constitution 
 adopted June 29, 1776, as follows: 
 
 "The territories contained within the charters erecting 
 the colonies of Maryland, Pennsylvania, North and South 
 Carolina, are hereby ceded, released and forever confirmed 
 to the- people of these colonies, respectively, wath all the 
 right of property, jurisdiction and government, and all other 
 rights whatsoever which might at any time heretofore been 
 claimed by Virginia, excepting the free navigation and use 
 of the rivers Potomack and Pohomoke with the property 
 
of the Virginia shores or strands bordering on either of said 
 rivers, and all improvements which have been or shall be 
 made thereon. 
 
 "The western and northern extent of Virginia shall in all 
 other respects stand as fixed by the charter of King James 
 I, in the year 1609, and by the public treaty of peace be- 
 tween the courts of Great Britain and France in the year 
 1763, unless by act of legislature one or more territories 
 shall hereafter be laid off and governments established 
 westward of the Alleghany Mountains. And no purchase 
 of land shall be made of the Indian natives but on behalf of 
 the public by authority of the General Assembly." 
 
 It will thus be seen that Virginia forever released all her claim 
 heretofore asserted to jurisdiction and property rights embraced 
 in the charters of these particular colonies and at the same time 
 reaffirmed her own charter rights to the Northwest territory 
 bounded by the Ohio and Mississippi, with an indefinite exten- 
 sion northwest of the Ohio River. This left open, however, the 
 controversy between Virginia and such States as New York, 
 Massachusetts and Connecticut, which had large claims to West- 
 ern lands, some of which overlapped Virginia territory. This 
 particular controversy could have had but one result, in view 
 of the indisputable record that this territory was never within 
 the chartered limits of any other colony or State or declared to 
 be so by any State in her declaration of independence, and, it 
 being conceded that the Confederation as such had acquired no 
 land by the War of the Revolution, it of necessity follows if the 
 territory did not belong to Virginia, it did not belong to the 
 United States. 
 
 Not content to rely upon charter rights the Legislature of Vir- 
 ginia had exercised many acts of dominion over this region. She 
 created the counties of Orange in 1734, of Augusta in 1738, of 
 Botetourt in 1769, "bounded west by the utmost limits of Vir- 
 ginia." In this act it was also recited that the people in this 
 county on the waters of the Mississippi were very remote from 
 the Court House. Another county, that of Fincastle, extended 
 to the Ohio, and embraced Kentucky. At the time of the De- 
 
claration of Independence these counties, bordering on the Ohio 
 and the Mississippi, were represented in the convention that 
 framed the first Constitution of the State. From 1752 to 1755 
 the legislature passed acts encouraging persons to settle in this 
 region, and Marshall's Life of Washington is authority for the 
 statement that the grant made to the Ohio Company was made 
 as a part of Virginia; while numerous other grants were made in 
 the Colonial period. 
 
 Her title to the Northwest territory was further strengthened 
 by conquest, and the Commonwealth, acting through its governor 
 and council, commissioned one of its own citizens, George Rogers 
 Clarke, who, in command of her own troops during the years 
 1778 and 1779, captured all the British posts within the con- 
 fines of this territory, with the exception of those immediately 
 bordering on the Great Lakes, and held the same in her own 
 name. By this expedition, "commanded by a Virginian, at 
 the head of a Virginia army, financed by Virginia," this terri- 
 tory was won, thereby terminating the British occupation and 
 materially contributing to the final victory won by the Colonial 
 army under the command of Washington at Yorktown. During 
 the governorship of Patrick Henry, the Legislature in October, 
 1778, organized the entire territory into Illinois county and soon 
 thereafter Governor Henry made provision for its government 
 by appointing and giving instructions to a lieutenant commander, 
 and the State* continued in actual control and possession until 
 the cession to the Federal Government and the latter's accept- 
 ance thereof. 
 
 If further evidence of the title of Virginia were required it 
 may be found in the recognition of its validity by the Supreme 
 Court of the United States in two notable decisions. In the 
 first, decided in 1818, Handley's Le55ge v. Anthony, 5 Wheat. 667, 
 there was a dispute involving the question of the jurisdiction of 
 the State of Kentucky over a portion of land in the shape of a 
 peninsula on the northwest bank of the Ohio River. The court, 
 speaking through Chief Justice Marshall, based its decision 
 against the validity of the claim of Kentucky on the grant of 
 Virginia to Congress of the territDty in her deed of cession, as 
 follows: "Situate, lying and being northwest of the Ohio River." 
 
The disputed tract, therefore, being in the State of Indiana, one 
 of the States carved out of the territory thus ceded, the court 
 held to be clearly comprehended by Virginia's cession, thus by 
 effective reference recognizing Virginia's title to all the territory 
 embraced in said deed. In the second case, Johnson v. Mcintosh, 
 8 Wheat., decided in 1823, in which Daniel Webster appeared as 
 counsel for the successful litigant, the court, again speaking 
 through Chief Justice Marshall, denied the validity of a title to 
 lands within the northwest territory derived solely from the grant 
 of an Indian tribe, on the ground that by the treaty of 1783, con- 
 cluding the War of the Revolution, Great Britain relinquished 
 her claim to the proprietary and territorial rights of the United 
 States, and by this same treaty the right to the soil previously 
 in Great Britain passed to the several States. That Virginia's 
 title to the Northwest territory was thereafter subject only to 
 the right of occupancy of the Indians, and that the right to ex- 
 tinguish said occupancy was vested alone in that State, and 
 therefore any grant of such soil by an Indian tribe without the 
 concurrence of Virginia was null and void. 
 
 In the case of the Commonwealth v. Garner, et al., a case de- 
 cided by the General Court of Virginia, reported in 3 Gratt. 655, 
 the title of Virginia to this territory is abundantly established 
 and the decision of the Supreme Court cited above adopted. In 
 this case the contention was raised by Hon. Samuel F. Vinton, 
 on behalf of Ohio, that the title to this territory was never in 
 Virginia. But the court, in disposing of this contention, not 
 only completely established Virginia's title, but also disposes of 
 this extraordinary contention with the conclusive suggestion 
 that the title of Ohio, whatever it was, was derived from Vir- 
 ginia, and therefore the former w^as estopped to deny the title 
 of the latter. It is believed that this opinion, occupying one hun- 
 dred and thirty pages of the printed report, constitutes the most 
 valuable contribution extant upon the historical and legal as- 
 pects of Virginia's title. 
 
 The Continental Congress in framing the Articles of Confed- 
 eration to be submitted to the several States for their accept- 
 ance confirmed Virginia's title by inserting a clause to the ef- 
 
10 
 
 feet that "no State shall be deprived of territory for the benefit 
 of the United States." 
 
 At the time the treaty of peace of 1783 was negotiated there 
 was much anxiety as to whether the western lands should be 
 comprehended in this treaty. The American Commissioners 
 put forward two views, namely, that this land was included and 
 embraced within the limits of Virginia's charter of 1609, and 
 that it was also in the actual occupancy and possession of Vir- 
 ginia, having been conquered by her troops under the expedi- 
 tion of George Rogers Clarke. The result of this double claim 
 made by the American Commissioners was to embrace this ter- 
 ritory in the treaty of cession, and, without attempting to decide 
 which view prevailed, it was exceedingly fortunate that this 
 region was in the possession of Virginia troops at the close of the 
 Revolutionary War. 
 
 II. 
 
 The Circumstances Culminating in the Cession of the 
 Northwest Territory by Virginia. 
 
 A brief survey of the relative area of the original thirteen 
 States is necessary in order to a correct understanding of the 
 influences operating to bring the Northwest territory under na- 
 tional control. For convenience these States may be divided 
 into claimant and non-claimant States, the former only claiming 
 western lands. The combined area of the six non-claimant 
 States, to-wit. New Hampshire, New Jersey, Rhode Island, 
 Delaware, Pennsylvania and Maryland, was 49,976,000 acres, 
 while the combined area of the claimant States, to-wit. New 
 York, Massachusetts, Connecticut, North Carolina, South Car- 
 olina, Georgia and Virginia, was 152,025,280 acres. To this 
 must be added the 53,052,880 acres within the boundaries of 
 Kentucky, Vermont and Maine, which States were erected out 
 of territory claimed respectively by Virginia, New York, Ma.^sa- 
 chusetts and New Hampshire by virtue of grants from the Brit- 
 ish crown prior to the Revolution. 
 
 To the area of the claimant States must be added their west- 
 ern lands, aggregating 259,171,789 acres. 
 
11 
 
 The grand total, therefore, of the acreage of the claimant 
 States was 464,247,949 acres, as against only 49,976,000 acres 
 within the area of the non-claimant States. Virginia's area 
 alone amounted to 218,866,533 acres, which was thirty-one 
 times as large as that of Maryland, and two hundred and ten 
 times as large as that of Delaware, and two hundred and sixty 
 times as large as that of Rhode Island. 
 
 The comparative area of the lands of the claimant and non- 
 claimant States was not the only difficulty, inasmuch as be- 
 tween the claimant States rival claims were put forward to the 
 same territory, growing out of conflicting grants made by differ- 
 ent sovereigns of Great Britain for lands in America already ad- 
 verted to. These royal grants covered the face of portions of 
 territories of some of the colonies with titles and claims five deep. 
 These questions not only prevented full concert of action among 
 the several States prior to the adoption of the Constitution, but 
 gave rise to controversies that seemed impossible of adjustment, 
 leading at least one historian to remark that the only boundary 
 line of the original thirteen colonies not the subject of contro- 
 versy was that on the east, to-wit, the Atlantic Ocean. Scent- 
 ing danger, the claimant States caused to be inserted in the Ar- 
 ticles of Confederation on October 27, 1777, a declaration to 
 the effect that the Continental Congress should be the last re- 
 sort on appeal, in all disputes and differences between two or 
 more States concerning boundaries, jurisdiction, or any other 
 cause whatever, with an elaborate machinery for the exercise 
 of such jurisdiction. It does not appear that the determination 
 of any such controversy was ever submitted to Congress, and, 
 in view of the cumbersome machinery provided and the jeal- 
 ousy of the States, it is not at all probable, if such a question had 
 been submitted, that any conclusion satisfactory to the clamiant 
 States could have been reached. 
 
 Another question of vast magnitude grew out of the helpless- 
 ness of the Continental Congress in the matter of taxation and 
 revenue, and tended to draw public attention to the lands of the 
 Northwest as a source of revenue. The Congress having no 
 power to levy a direct tax and no means of enforcing against a 
 State its proportionate share of the expenditures incurred in the 
 
12 
 
 common defense or general welfare, these lands as early as 1776 
 were looked to "as a resource amply adequate, under proper reg- 
 ulations, for defraying the whole expenses of the war." The fi- 
 nancial embarrassment of the country had not grown less upon 
 the completion of the Articles of Confederation and, more and 
 more was the public mind being directed to these lands as a means 
 of relief. On July 31, 1782, a committee of one from each State 
 reported to Congress "that the western lands, if ceded to the 
 United States, might contribute toward a fund for paying the 
 debt of these States," but a substitute for this part of the re- 
 port was embodied in a resolution declaring that the cession of 
 these lands "would be an important fund for the discharge of 
 the national debt." While neither of the above recommenda- 
 tions was actually adopted, yet their serious consideration by 
 Congress shows that the national idea was gaining ground. 
 
 Having thus demonstrated the hopeless character of the land 
 controversy into which the claimant States were about to be 
 plunged, if left alone to adjust their own differences, the over- 
 shadowing influence of the claimant States in the Confedera- 
 tion, which time would not diminish, as well as the important 
 bearing of these lands upon the public revenue, when once under 
 national control, it now becomes pertinent to trace the more im- 
 mediate steps looking to the result. Hinsdale in "The Old 
 Northwest" points out that at various times four different ideas 
 as to the western lands were suggested. The original idea of the 
 claimant States was to retain them for their own exclusive use; 
 second, it was proposed to distribute the lands or their proceeds 
 among all the States in whole or in part, leaving the question of 
 jurisdiction with the claimant States. The third proposition 
 might be termed the Maryland idea, to-wit, that Congress should 
 assert the sovereign power of the United States over the western 
 lands without waiting for State cessions. The last plan, that 
 of voluntary cession by the States was the one ultimately 
 adopted. The first two plans soon passed out of consideration 
 as not meeting the exigencies of the situation, and the last two, 
 that of an assertion of national sovereignty and that of volun- 
 tary State session, were now bi-ought promptly forward. Paren- 
 thetically, it should be observed that there could be no national- 
 
13 
 
 ization of these lands as long as the Confederation lasted, inas- 
 much as the Articles gave Congress no resources whatever, ex- 
 cept as same might come to it by way and in the name of the 
 States. 
 
 To Maryland must be given credit of first calling official at- 
 tention of the nation to the gravity of the situation. On Oc- 
 tober 15, 1777, a month prior to the completion of the Articles 
 of Confederation, the following proposition, receiving only the 
 single vote of Maryland, was offered: "That the United States 
 in Congress assembled shall have the sole and exclusive right and 
 power to ascertain and fix the western boundary of such States 
 as claim to the Mississippi or South Sea and lay out the land 
 beyond the boundary so ascertained into separate and independ- 
 ent States, from time to time, as the numbers and circumstances 
 of the people thereof may require." Congress in June, 1778, 
 following the submission of the Articles of Confederation on No- 
 vember 17, 1777, to the States for their ratification, was engaged 
 in the discussion of the objections of certain of the States to these 
 Articles. At this critical juncture the State of Maryland in two 
 separate resolutions passed respectively on June 22d and De- 
 cember 15th, 1778, proposed that the boundary of the claimant 
 States should be curtailed and defined, and that the western 
 territory should be held for the benefit of all the States. From 
 that time until the 2d day of February, I7rtl, Maryland refused 
 to instruct her delegates to agree to the Articles of Confederation. 
 On May 21, 1779, through her representatives in the Continen- 
 tal Congress, Maryland laid before that body certain instruc- 
 tions to its delegates, George Plater, William Paca, William Car- 
 michael, John Henry, James Forbes, and Daniel, of St. Thomas, 
 Jenifer. In this document it was pointed out that Virginia had 
 it within her power by selling a small portion of these lands to 
 greatly replenish her own treasury, reduce her taxes and thus, 
 with lands comparatively cheap and taxes comparatively low, 
 the neighboring State of Maryland would be deprived by emi- 
 gration of its most useful citizens and its importance in the con- 
 federated States would sink to a comparatively low level. An 
 effort was also made in this document to show that Virginia had 
 no title to these lands, and instructions were therein given to her 
 
14 
 
 delegates that she, herself, would not ratify these Articles until 
 she received some distinct assurance that the territory would be- 
 come common property of the United States and "subject to be 
 parcelled out by Congress into free, convenient and independent 
 governments." Delaware followed this initiative, and on Feb- 
 ruary 23, 1779, presented to Congress a series of resolutions 
 passed by the Legislature of that State, putting forward the 
 proposition that these lands should be held by the United States 
 on terms alike beneficial to all the States. 
 
 It will thus be seen that the protest of Maryland as finally 
 presented to Congress on May 21, 1779, involved two proposi- 
 tions, which will now be the subject of inquiry, to-wit, that the 
 Continental Congress had the right to assume sovereignty over 
 this territory, and, second, that the entire Northwest territory 
 acquired from Great Britain by the treaty of 1783 was secured 
 by the common blood and treasure of the whole people, and 
 therefore should be held by the general government for their 
 benefit. It is not surprising that all the other non-claimants 
 States, to-wit. New Jersey, Delaware, Pennsylvania, Rhode Is- 
 land and New Hampshire, found themselves in full accord with 
 the Maryland idea. Virginia, always foremost in asserting both 
 her own rights and those of the nation, sharply defined her own 
 position, and made answer through her General Assembly on 
 December 14, 1779, at which time she addressed to the delegates 
 of the United States in Congress assembled a remonstrance 
 against the merits of the issues thus raised by Maryland. In 
 this remonstrance, after expressing her determination, on all oc- 
 casions, "to manifest her attachment to the common interests 
 of America, and her earnest wish to remove every cause of jeal- 
 ousy and promote that mutual confidence and harmony between 
 the different States so essential to their true interest and safety," 
 she set forth her position in language too cogent and perspicuous 
 to admit of abridgment: 
 
 "Should Congress assume a jurisdiction, and arrogate to 
 themselves a right of adjudication, not only unwarranted 
 by law, but expressly contrary to the fundamental piinci- 
 ples of the Confederation; superseding or controlling the 
 
15 
 
 internal policy, civil regulations, and municipal laws of this 
 or any other State, it would be a violation of public faith, 
 introduce a most dangerous precedent, which might hereafter 
 be urged to deprive of .territory or subvert the sovereignty 
 and government of any one or more of the United States, 
 and establish in Congress a power which in process of time 
 must degenerate into an intolerable despotism." . . . 
 
 . . . "The United States hold no territory but in the 
 light of some individual State in the Union; the territory of 
 each State from time immemorial hath been fixed and de- 
 termined by their respective charters, there being no other 
 rule or criterion to judge by; should these in any instance 
 (when there is no disputed territory between paiticular 
 States) be abridged without the consent of the States af- 
 fected by it, general confusion must ensue; each State would 
 be subjected in its turn to the encroachments of the others; 
 and a field opened for future wars and bloodshed; nor can 
 any arguments be fairly urged to prove that any particu- 
 lar tract of country, within the limits claimed by Congress 
 on behalf of the United States, is not part of the chartered 
 territory of some one of them, but must militate with equal 
 force against the right of the United States in general; and 
 tend to prove such tract af country (if northwest of the Ohio 
 River) part of the British Province of Canada. When Vir- 
 ginia acceded to the Articles of Confederation her rights of 
 sovereignty and jurisdiction within hei own territory were 
 reserved and secured to her, and cannot now be infringed 
 or altered without her consent." 
 
 'I'lie position thus set forth on behalf of the old Commonwealth 
 was the one finally acquiesced in by the Continental Congress, 
 for it was manifest that the adoption of the Maryland idea, to- 
 wit, an assertion of national sovereignty over the lands in ques- 
 tion, would have been to overthrow the Confederation and to 
 wreck the cause of independence. 
 
 In connection with the above Remonstrance of Virginia it is 
 important to recall that the Continental Congress neither in its 
 relations with Great Britain nor with any of the States, ever 
 
16 
 
 adopted the Maryland idea by making the national claim to this 
 territory, and never took the position that these lands had been 
 wrested from the common enemy by the common blood and 
 treasure of the colonies. On the contrar}^ in the very instruc- 
 tions given by the Continental Congress more than a year be- 
 fore the date of Virginia's cession to Mr. Adams, who was one 
 of the Commissioners to negotiate the treaty of 1783, the po- 
 sition of the colonies was stated in the very words set forth in 
 the Virginia Remonstrance and already quoted: "The United 
 States hold no territory but in the right of some .one individual 
 State in the Union; the territOi-y of each State from time im- 
 memorial hath been fixed and determined by their respective 
 charters, there being no other rule or criterion by which to judge." 
 There was no means of enforcing a claim of jurisdiction over 
 these lands by Congress apart from the fact that such an attempt 
 was contrary to the express terms of the Articles of Confedera- 
 tion. It is inconceivable that a combination of the non-claim- 
 ant States could have been made strong enough to enforce such 
 a claim against the claimant States of Massachusetts, New York, 
 Connecticut, Virginia, North and South Carolina and Georgia. 
 So that Congress on the one hand was powerless to induce Mary- 
 land to subscribe to the Articles of Confederation, and, on the 
 other, the Articles of Confederation left to the States the abso- 
 lute control and ownership of their western lands, the power of 
 Congress being expressly limited in Article 9 as to the settlement 
 of boundary disputes between States. In the meanwhile Vir- 
 ginia, finding herself by the Articles of Confederation in the ex- 
 clusive control and ownership and desirous of defraying the ex- 
 penses of the Clarke expedition, opened a land office, granted 
 bounties, and otherwise proceeded to dispose of these lands. 
 In recognition of the general discontent the Continental Con- 
 gress, on October 30, 1779, passed by a vote of eight States to 
 three, a resolution, subsequently transmitted to the different 
 States, recommending to Virginia and other States similarly cir- 
 cumstanced the propriety of forbearing the further issuance of 
 warrants for unappropriated lands during the continuance of the 
 War of the Revolution. The first State to respond to this recom- 
 mendation was New York, whose delegates on March 30, 1780, 
 
17 
 
 presented to the Continental Congress an act of its Legislature 
 offering to cede to the United States all territory in the West 
 claimed by New York. This act was not fully carried into ef- 
 fect until March 1, 1781. While the prompt action of New York 
 had a good moral effect upon the other States invited to surren- 
 der their territory, yet no impartial consideration can lose sight 
 of the fact that the title of New York to any of these western 
 lands was exceedingly questionable, consisting of a mere claim 
 based wholly upon title derived by treaty with the Algonquin 
 tribes and the Six Nations, a title which the Supreme Court of 
 the United States, in the case of Johnson v. Mcintosh, supra, 
 declared did not extend beyond the Indian right of occupancy, 
 and was held to be subservient to the chartCi" rights of Virginia. 
 A reading of the documents covering the history of this period 
 has convinced the writer that the appeal, which proved irresistible 
 to the Commonwealth of Virginia, was contained in the language 
 of the report agreed to by the Continental Congress after a full 
 consideration of the entire subject, including the refusal of Mary- 
 land to subscribe to the Articles of Confederation and the action 
 of New York therefore ceding her territory. Some of the lan- 
 guage of this report in lofty patriotism dignified appeal to sover- 
 eign States to make sacrifice for the Commonwealth, and in 
 clear conception of the overshadowing importance of the na- 
 tional control of this vast domain has been rarely equalled by 
 any public paper bearing upon the creation and establishment 
 of any government. In part this action of Congress, taken on 
 September 6, 1780, Is as follows: 
 
 "That it appears more advisable to press upon these 
 States, which can remove the embarrassments respecting 
 the western country, a liberal surrender of a portion of their 
 territorial claims, since they cannot be preserved entire with- 
 out endangering the stability of the general Confederacy; 
 to remind them how indispensably necessary it is to estab- 
 lish the Federal Union on a fixed and permanent basis and 
 on principles acceptable to all its respective members; how 
 essential to public credit and confidence, to the support of 
 our army, to the vigor of our councils, and success of our 
 
measures; to our tranquillity at home, our reputation abroad, 
 to our very existence as a free, sovereign and independent 
 people; that they are fully persuaded the wisdom of the re- 
 spective legislatures will lead them to a full and impartial 
 consideration of a subject so interesting to the United States 
 and so necessary to the happy establishment of the Federal 
 Union." 
 
 A resolution embodied in the foregoing report directing that 
 the same be transmitted to the legislatures of the several States 
 recommended: "To those States who have claims to the western 
 country to pass such laws, and give their delegates in Congress 
 such powers as may effectually remove the only obstacle to a final 
 ratification of the Articles of Confederation." 
 
 On October 10, 1780, Congress made more definite its former 
 action by resolution to the following effect: 
 
 "Resolved, That the unappropriated lands that may be 
 ceded or relinquished to the United States, by any particular 
 State, pursuant to the recommendation of Congress on the 
 6th day of September last, shall be disposed of for the com- 
 mon benefit of the United States, and be settled and formed 
 into distinct Republican States, which shall become mem- 
 bers of the Federal Union, and have the same rights of sove- 
 reignty, freedom and independence as the other States." 
 
 A proud but generous Commonwealth, always ready to make 
 sacrifices, "to establish the Federal Union on a fixed and per- 
 manent basis," could not lend a deaf ear to such an appeal, and 
 on the following Januarj^ 2, 1781, presumably taking the first 
 opporttinity to respond, submitted a proposition for the cession 
 of the western lands. In addition to the reservations, six in all, 
 which were actually set forth In the deed of cession executed three 
 years later, and which will be hereafter more specifically referred 
 to, Virginia by the foregoing resolution made one condition of 
 the proposed grant, which upon principle was inadmissible, and 
 from which she, herself, afterward receded. This condition was 
 set forth as follows : 
 
19 
 
 "That all the remaining territory of Virginia included be- 
 tween the Atlantic Ocean and the southeast side of the River 
 Ohio, and Maryland, Pennsylvania and North Carolina 
 boundaries, shall be guaranteed to the Commonwealth 
 of Virginia by the said United States, and that all purchases 
 and deeds from the Indians of any lands within the cession 
 should be declared absolutely void." 
 
 Clearly these two conditions, if agreed to, would involve a de- 
 claration by Congress as to the validity of Virginia's title to the 
 Northwest, and a ruling out of the claims of New York and per- 
 haps of Connecticut and Massachusetts, and thus be a radical 
 departure from the policy of Congress in uniformly declining to 
 pass upon the relative claims of sovereign States to lands, a ces- 
 sion of which this same Congress was inviting but not demanding 
 for the general good. Nor was Virginia supported in insisting 
 upon this guarantee by her public men. Madison in a letter to 
 John Randolph of August 13, 1782, said: 
 
 "Every review I take of the western territory produces fresh 
 conviction that it is the true policy of Virginia, as well as of the 
 United States, to bring the dispute to a friendly compromise," 
 and further expressed the hope that Virginia's demand for a 
 guarantee be relaxed. This guarantee was later characterized 
 by Congress in a committee report adopted on September 18, 
 1782, to be either unreasonable or unnecessary, Inasmuch as if 
 the land above mentioned is really the property of the State of 
 Virginia, it is sufficiently secured by the Confederation and if 
 it is not the property of that State, there is no reason or consid- 
 eration for such guarantee. In March, 1781, two important 
 transactions were consummated. The Maryland delegates, be- 
 ing therefore empowered by her Legislature, ratified the Articles 
 of Confederation, relying on the justice of the States upon the 
 question of cession, and the New York delegates executed the 
 deed of cession to the western lands claimed by that State. That 
 Maryland was justified by this reliance is disclosed by the sub- 
 sequent cession of Virginia and the other claimant States. This 
 long controversy was ended by Virginia's deed of cession on 
 
20 
 
 March 1, 1784, eliminating the above guarantee, the deed being 
 executed and delivered by her delegates in the Continental Con- 
 gress, to-wit, Thomas Jefferson, Samuel Hardy, Arthur Lee and 
 James Monroe. This deed was written wholly in the handwrit- 
 ing of Thomas Jefferson. 
 
 To the bold initiative of Maryland too much credit cannot 
 be given, for in thus centering public attention upon the much 
 vexed land question other causes were set in motion which ac- 
 complished the result aimed at by Marj-land, but by another 
 and more orderly route. While Maryland was lodging her pro- 
 tests in Congress, Virginia with an army of her own, entirely in- 
 dependent of her full quota of soldiers to the War of the Revo- 
 lution, was actually engaged in the successful conquest of the 
 very territory which was the subject of controversy, and one 
 striking result of the George Rogers Clarke expedition was to 
 protect the Maryland frontier from hostile attack. 
 
 The State of Massachusetts made cession of her western lands 
 on April 19, 1783, the State of Connecticut on September 3, 
 1786, but did not make jurisdictional cession of the Western 
 Reserve until May 30, 1800. Subsequently South Carolina ceded 
 her western lands on August 9, 1787, North Carolina on February 
 25, 1790, and Georgia on April 24, 1802. 
 
 It will thus te seen that Virginia was the first State to cede 
 Northwest lands, the title to which was undisputed, thus mark- 
 ing an important advance towards establishing a government, 
 bound together otherwise than by "a rope of sand," and thus the 
 way was paved for the passage of the famous ordinance of 1787, 
 whereby this territory was organized into a government forever 
 dedicated to freedom. 
 
 III. 
 
 Were Any Rights Reserved to Virginia Under and by 
 Virtue of the Deed of Cession of March 1, 1784? 
 
 The crux of the whole question is involved in a true answer to 
 this inquiry, because, if the title conveyed by Virginia was in fee 
 simple and indefeasible, as historians and statesmen have com- 
 
21 
 
 monly supposed, and divorced in all respects from any condi- 
 tions or reservations, either expressed in the deed or implied in a 
 fair construction thereof, then the interrogatory which forms the 
 subject of this paper, must be resolved in the negative, and the 
 question becomes purely an academic one, shorn ot all vitality, 
 and this State must also in such an event rest content in the 
 mere retrospective contemplation of her generous relinquish- 
 ment of territory, without which it is fair to assume the launch- 
 ing of this nation would have been less auspicious, and in the 
 further contemplation that the territory thus ceded, by reason 
 of its increasing population, expanding resources, and the gov- 
 ernments there established, has exerted such a mighty influence 
 in forming a Union of independent, sovereign and indestructible 
 Commonwealths; whereas, an affirmative answer to this inter- 
 rogatory puts flesh on the skeleton, breath into its nostrils, and 
 clothes the whole controversy^ with present and human interest, 
 paving the way for the consideration of other questions, w^hich 
 must still be resolved before this claim becomes justiciable and 
 therefore of such a character as may be submitted for adjudica- 
 tion to some tribunal clothed with power to hear and to deter- 
 mine all the issues involved. 
 
 At this point it is pertinent to call attention to certain distinct 
 conditions in the deed of cession recognized by all as binding upon 
 the United States. These may be broadly stated as follows: 
 
 1. That the territory thus ceded shall be laid out and formed 
 into States distinctly republican and having all the rights of 
 sovereignty enjoyed by other States. 
 
 2. That the reasonable expenses incurred by Virginia in con- 
 quering this territory from the British, in maintaining garrisons 
 therein or otherwise in acquiring any portions thereof shall be 
 fully reimbursed by the United States. 
 
 3. That the French and Canadian inhabitants and other set- 
 tlers, professing themselves to be citizens of Virginia, shall have 
 their titles and possession confirmed in them and be protected 
 in the enjoyment of the same. 
 
 4. That there shall be reserved land not exceeding 150,000 
 acres for General George Rogers Clarke, his soldiers and officers. 
 
•22 
 
 5. That there shall be further reservation of land bounties for 
 officers and soldiers on Continental and State establishments. 
 
 Congress uniformly recognized the inviolability of these con- 
 ditions, and within two months after the cession, to-wit, April 
 29, 1784, by resolution called the attention of the States still 
 holding western lands to the fact of former resolution of Congress 
 asking for cessions; and "in presenting another request for fur- 
 ther cessions" states (speaking of persons who had furnished 
 supplies to carry on the war): "These several creditors have a 
 right to expect that funds shall be provided on which they may 
 rely for their indemnification; that Congress still considers va- 
 cant territory as an important resource, and that, therefore, the 
 said States be earnestly pressed, by immediate and liberal ces- 
 sions, to forward these necessary ends, and to promote the har- 
 mony of the Union." The land laws of the United States further 
 show that all these conditions have been strictly complied with. 
 If further illustration were needed that the United States con- 
 sidered itself irrevocably bound by the terms of the cession, it 
 is found in the resolution of Congress of July 7, 1786, asking of 
 Virginia certain alterations in the deed of cession in the follow- 
 ing language: 
 
 " 'Resolved, That it be, and it hereby is, recommended 
 to the Legislature of Virginia to take into consideration their 
 act of cession, and revise the same so far as to empower the 
 United States in Congress assembled to make such a division 
 of the territory of the United States northerly and westerly 
 of the River Ohio, into distinct Republican States, not more 
 than five or less than three, as the situation of that country 
 and future circumstances may require; which States shall 
 hereafter become members of the Federal Union, and have 
 the same rights of sovereignty, freedom and independence 
 as the original States, in conformity with the resolution of 
 Congress of the 10th of October, 1780.' " 
 
 The ordinance of July 13, 1787, providing for the government 
 of this territory, also embraced the proposition covered by the 
 above resolution and Virginia accepted this modification by leg- 
 
23 
 
 islative act of December 31, 1788. One condition, however, of 
 the deed of cession has never been fulfilled by Congress. This 
 condition forms the basis of Virginia's claim to compensation, 
 and is in the following language: 
 
 "That all the lands within the territory so ceded to the United 
 States, and not reserved for, or appropriated to, any of the be- 
 fore-mentioned purposes, or disposed of in bounties to the offi- 
 cers and soldiers of the American 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 confed- 
 eration or federal alliance of the said States, Virginia inclu- 
 sive, according to their usual respective proportions in the gen- 
 eral charge and expenditure, and shall be faithfully and bona 
 fide disposed of for that purpose, and for no other use or pur- 
 pose whatsoever.'' 
 
 In the background of any discussion of a breach by the nation 
 of the conditions just set forth lies the relation of the govern- 
 ment on the one hand and the States carved out of this terri- 
 tory on the other, with respect to what was known as the Public 
 Domain situated within the borders of these States. Congress 
 in its various acts providing for the creation of these States re- 
 served to itself not only the control, but the absolute ownership 
 of this Public Domain, and the States mentioned had no more 
 control over it for purposes of disposition or otherwise than if it 
 were located on the Atlantic seaboard. This consideration is of 
 vital importance, because the nation by its acceptance of Vir- 
 ginia's deed of cession became the sole and exclusive owner of 
 many millions of acres of unoccupied and unappropriated lands 
 within this territory, lands that have not bfeen appropriated to 
 any one of the five uses expressly set forth and authorized in the 
 Virginia deed of cession. If follows, therefore, that the nation 
 became also the trustee of these unappropriated lands, and its 
 duties as such trustee compelled it in law and in equity to ac- 
 count to the original thirteen States in respect of any use or dis- 
 position made thereof contrary to the sixth condition, also ex- 
 pressly set forth in said deed of cession and in equal degree bind- 
 ing upon the nation. 
 
24 
 
 This condition along with the others was accepted by the 
 nation, and unless annulled by the concurrence of the high con- 
 tracting parties or rendered void by the adoption of the Constitu- 
 tion of the United States, adopted after the cession was made, 
 furnishes a valid basis of claim on the part of Virginia. 
 
 There has been no legislation by the State or by Congress 
 altering in any respect this condition and attention is called to 
 the fact that the Constitution of the United States, so far from 
 rendering void this condition or in any way affecting its integrity, 
 has reaffirmed it by the following provisions: 
 
 Article IV, section 3, "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; and 
 nothing in this Constitution shall be so construed as to prejudice 
 any claims of the United States or of any particular State." 
 
 And Article VI : 
 
 "All debts contracted, and engagements entered into, before 
 the adoption of the Constitution, shall be as valid against the 
 United States under the Constitution as under the confedera- 
 tion." 
 
 IV. 
 
 The Basis and Extent of Compensation to Virginia. 
 
 It is to be constantly observed that any of this territory or the 
 proceeds thereof disposed of by the United States contrary to 
 the express condition in the deed of cession "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 ex- 
 penditures, and shall be faithfully and bona fide disposed of for that 
 purpose and for no other use or purpose whatsoever.'' 
 
 The first inquiry forcing itself upon the mind on a careful 
 scrutiny of this language is, why did Virginia in making this 
 reservation include all the thirteen States as beneficiaries in this 
 trust? Having title to this vast region, with unlimited power of 
 
25 
 
 alienation, why did she not compel the nation to become trustee 
 for her sole and exclusive benefit, instead of acting in such ca- 
 pacity for the benefit of the entire thirteen States? This ques- 
 tion may only be intelligently resolved by a consideration of the 
 Articles of Confederation and the legal relation of the States 
 thereto. At the time Virginia by legislative act made her offer 
 of cession upon terms which she knew would be acceptable to 
 the National Government, Maryland had not ratified the Arti- 
 cles of Confederation, and, since these Articles constituted a per- 
 petual union among thirteen States, this ratification by ticelve 
 States alone did not give them force and effect over even the 
 twelve. Therefore, the language in the Virginia offer of cession, 
 afterwards incorporated in the deed of cession, "shall be consid- 
 ered a common fund for the use and benefit, of such of the United 
 States, as have become or shall become members of the Con- 
 federation or Federal alliance," was evidently designed to secure 
 the immediate ratification of Maryland. Another reason why 
 the thirteen States were included in the benefits of -the reservation 
 grew out of the fact the Continental Congress was experiencing 
 great difficulty in getting the various States to supply their pro- 
 portion of the amounts assessed against them for the common de- 
 fense, pursuant to resolution of Congress of October 14, 1777. 
 Some of the States were not responding promptly in meeting 
 their share of the burden of the Revolutionary War, and Virginia 
 rightl}^ concluded that, by making the less important States 
 joint beneficiaries with herself, "according to their usual and re- 
 spective proportions in the g neral charge and expenditures," all 
 the States would more promptly meet the expenses of the war, 
 and that thus the Continental Congres.- would be provided with 
 funds necessary to bring the war to a successful close. Her 
 statesmen doubtless reasoned that the States securing by the 
 sword the independence of the nation, should also be the bene- 
 ficiaries of her bounty. This view is strengthened by the re- 
 flection that there was no power delegated to Congress by the 
 Articles of Confederation respecting the ownership or control of 
 public domain. The government created by the Articles was a 
 mere creature of the States with limited powers of agency. The 
 States alone in their individual capacity had the right to own and 
 
26 
 
 govern territory, and this right as above pointed out was guar- 
 anteed to them by the Articles of Confederation. 
 
 From this premise the conclusion of necessity follows that the 
 States in their sovereign capacity having the power to own ter- 
 ritory, might also become in their individual capacities the bene- 
 ficiaries of the trust contemplated by Virginia's deed of cession. 
 
 The Constitution of the United States not yet having been 
 adopted, and the idea of the States being members of a Federal 
 alliance that was little more than a partnership operating upon 
 the mind of Congress, the latter (History of Public Domain, p. 
 196) on October 10, 1780, ordered that the land ceded to the 
 United States should be disposed of for the common benefit of 
 the United States, and granted or settled at such time and under 
 such regulations as shall hereafter be agreed on by the United 
 States in Congress assembled, or by any nine or more of them. 
 
 On May 20, 1785, the Continental Congress passed an ordi- 
 nance (repealed in part of July 9th, 1788) providing for disposi- 
 tion of lands in this territory. 
 
 Under this ordinance the Board of Treasury (the Treasury De- 
 partment prior to and under the Confederation: See ordinances 
 of Congress of February 17, 1776, of July 30, 1779, and of May 
 28, 1784), consisting of three commissioners, were to receive the 
 plats of surveys, from the geographer (now survey general) in 
 charge of surveys. The Secretary of War was then to draw by 
 lot certain townships for land bounties for the use of the Conti- 
 nental Army and the Board of Treasury was to draw the re- 
 mainder by lot in the name of the thirteen States, respectively, 
 who were to advertise and sell them at public sale for not less 
 than $100 per acre." 
 
 Clearly, as pointed out by Dr. Robert B. Fulton in his pamph- 
 let on the "Virginia Land Cession of 1784," the provision for 
 drawing certain tracts in the name of the thirteen States was a 
 move toward carrying out the last specific condition in the Vir- 
 ginia deed cession. 
 
 The following extract is taken from the History of the Public 
 Domain, pp. 200-205. 
 
27 
 
 "On March 3, 1795, Congress, by law provided, that 'the 
 net proceeds of the sales of lands belonging, or which shall 
 hereafter belong, to the United States in the western terri- 
 tory thereof,' should constitute a portion of the sinking fund 
 of the United States for the redemption of the public debt. 
 
 "On May 18, 1796, Congress passed the act for the sale 
 of the land of the United States in the territory northwest 
 of the River Ohio, providing for the sale of the surveyed 
 lands in sections of 640 acres, at not less than $2.00 per acre, 
 the proceeds to be paid to the Treasury of the United States. 
 
 "The general policy of land legislation by Congress was, 
 for the first thirty years, to meet exigencies by temporary 
 enactments fiom time to time. This policy was continued 
 down to the period of the passage of the pre-emption act of 
 1841." 
 
 Dr. Fulton aptly remarks: 
 
 "Under this policy Congress fell into the habit of donating 
 lands freely and liberally in the territory ceded by Virginia, ap- 
 parently without considering whether or not the conditions of 
 this cession were being fully fulfilled by such donations and 
 grants for local benefit. As the result of this indefinite policy the 
 lands in the territory ceded by Virginia have been practically all 
 disposed of by the United States without any adjustment or 
 settlement of Virginia's reserved interest therein." 
 
 The land granted by Congress to Ohio, Indiana, Illinois, Mich 
 igan, Wisconsin or to persons in those States for local uses al 
 in direct violation of the sixth condition in Virginia's deed of 
 cession, may be stated under the following heads: 
 
 1. For public schools, one square mile in each township to 
 the legislatures of these five States. 
 
 2. For seminaries in each of these States (and more in Ohio 
 and Wisconsin) seventy-two square miles. 
 
 3. For public roads and other internal improvement 3 per 
 cent, of the receipts for sales of public lands by the United States 
 to Indiana, Illinois, and Ohio, and 5 per cent, of such sales to 
 Michigan and Wisconsin. 
 
28 
 
 4. Internal improvements, 500,000 acres to each State. 
 
 5. For canal construction purposes, 4,424,073 acres. 
 
 6. For military roads, 523,000 acres. 
 
 7. Land grants to railroads to these States and the corporations 
 therein, 9,504,861 acres. 
 
 8. Salt springs and saline lands, 214,371 acres. 
 
 9. Under the swamp act Congress gave to these States 11,- 
 406,841 acres. 
 
 10. Special grants for local improvements and for other sun- 
 dry purposes, 100,000 acres. 
 
 Similar grants in Minnesota amounted to 5,529,000 acres. 
 This makes the total of 38,864,189 acres thus disposed of by the 
 National Government contrary to the express terms of Virginia's 
 deed of cession, and in a manner that gave no "use" or "benefit" 
 to Virginia and the other thirteen States, as set forth therein, or 
 one-fifth of the lands ceded. 
 
 To the above 38,864,189 acres must be added 119,479,204 acres 
 disposed of by the United States as a part of the public domain. 
 This will more fully appear from the following admirable table 
 taken from Dr. Fulton's paper: 
 
 Acres 
 
 "The total area surveyed by the United States 
 in the States formed in the Virginia cession, as above 
 shown, amounted to 170,208,613 
 
 The total granted for local uses was 38,864,189 
 
 Total granted in bounties to soldiers 11,865,220 
 
 50,729,409 
 
 170,208,613 
 50,729,409 
 
 Balance sold or to be sold 119,479,204 
 
 It is not possible without a careful scrutiny of the original 
 records bearing upon the sale of the public lands to estimate 
 with accuracy the amount received by the Government from 
 
29 
 
 these sales. It is beyond the scope of this paper to make in- 
 quiry as to the value to be placed upon these lands in considering 
 Virginia's right to compensation. When it is considered, how- 
 ever, that the total area disposed of by the National Government, 
 contrary to the express reservations in the Virginia deed of 
 cession, amounts to 158,343,391 acres, it becomes manifest that, 
 whatever system of accounting is adopted, the total claim of the 
 original thirteen states, to which Virginia's share, based upon her 
 proportion "of the general charge and expenditure," would be 
 one-seventh, would approximate the sum of $200,000,000. West 
 Virginia and Kentucky, being parts of Virginia at the time of the 
 deed of cession, would be entitled to an equitable accounting 
 from Virginia for anything the latter may receive by way of 
 compensation. 
 
 V. 
 
 Has Virginia Lost Her Claim to Compensation by Reason 
 
 OF Laches? 
 
 The defense of laches is peculiar to courts of equity and may 
 be said to be founded on lapse of time and staleness of claims 
 where no statute of limitations directly governs the case and is 
 addressed to the sound discretion of the court. There are sev- 
 eral well-known exceptions to the operation of this doctrine, 
 only two of which need be adverted for the purposes of this dis- 
 cussion. 
 
 (a) Laches Not Imputable to a Sovereign. 
 
 The only modification of this rule is where a sovereign govern- 
 ment descends from its position of sovereignty and enters the 
 domain of commerce — a modification that has no reference to 
 the case under consideration. 
 
 The Supreme Court of the United States has uniformly ad- 
 hered to this rule, and in the case of Armstrong v. Morrill, 14 
 W^all. 120, thus expressed it: No laches is to be imputed to the 
 government and against it no time runs so as to bar the public 
 
30 
 
 rights, which is no more and no less than another form of words 
 for expressing the ancient rule of the common law that time does 
 not run against the State." 
 
 This rule was given a more extended definition in the case of 
 Metropolitan Railroad Co. v. District of Columbia, 132 U. S. 1, 
 decided 1889, the following extract being taken from the opinion 
 of Mr. Justice Bradley: 
 
 "No restrictive laws apply to the sovereign unless so ex- 
 pressed. And especially no laws affecting a right on the 
 ground of neglect or laches, because neglect and laches can- 
 not be imputed to him. And it matters not whether the 
 sovereign be an individual monarch, or a republic, or a State. 
 The principle applies to all sovereigns. The reason usually 
 assigned for this prerogative is that the sovereign is not an- 
 swerable for the delinquencies of his agents. But what- 
 ever the true reason may be, such is the general law — such 
 the universal law, except where it is expressly waived. The 
 privilege, however, is a prerogative one and cannot be chal- 
 lenged by any person inferior to the sovereign, whether that 
 person be natural or corporate." 
 
 {h) Defense of Laches Not Open Where There is no Judicial Remedy. 
 
 While under the Tucker and Bowman acts the Court of Claims 
 Is the proper forum to which certain loyal citizens may submit 
 for adjudication claims previously authorized to be submitted 
 by Congress against the government for damages to or loss of 
 property growing out of the Civil War and otherwise, yet no 
 tribunal has been established and no law passed whereby the 
 United States has agreed to respond to the suit of a sovereign 
 State. To remedy this situation a bill was introduced in the 
 Senate on April 10, 1912, by Senator Chilton, of West Vir- 
 ginia, conferring jurisdiction upon the Court of Claims to 
 hear and determine the joint and several claims of Virginia 
 and the other thirteen States, also inclusive of West Virginia 
 and Kentucky, against the United States growing out of Vir- 
 ginia's deed of cession of March 1, 1784, and providing "that an 
 
31 
 
 appeal may be taken from the findings of said court, both as to 
 the law and facts, to the Supreme Court of the United States as 
 in other cases." 
 
 The Court of Claims in Balmer v. U. S., 26 C. CI., 82, 88, said 
 there could be no laches where there was no enforcible legal 
 right. 
 
 It will be sufficient in closing this aspect of the matter to cite 
 a single decision of the Supreme Court of the United States, 
 when that court in the case of Amy v. Watertown, 130 U. S., 320, 
 325, speaking tJirough Mr. Justice Bradley, said: "There is one 
 class of cases which is excluded from the operation of the statute 
 (referring to the Statute of Limitations) by act of law itself, 
 . . . This class embraces those cases in which no action can be 
 brought at all (italics mine), either for want of parties capable of 
 suing, or because the law prohibits the bringing of the action. 
 In such cases the general law operates as a qualification, a tacit 
 condition of the particular statute." 
 
 It may also be suggested that this conveyance with respect 
 to the condition or reservation was made upon an express and 
 continuing trust, which is as follows: "And shall be faithfully 
 and bona fide disposed of for that purpose and no other." The 
 government by taking possession of these lands became a trustee, 
 and the possession of the trustee, under the circumstances, is 
 presumed to be the possession of the cestui que trust — in this 
 case the original thirteen States. Besides, it was not until a 
 recent date that the last of these lands were disposed of by Con- 
 gress. 
 
 VI. 
 
 The Authorship and Importance of the Ordinance of 
 July 13th, 1787. 
 
 It has been remarked that history may yet adjudge the \'ear 
 1787 as the greatest in our annals. In that year the Continental 
 Congress, sitting in New York, and on the eve of adjournment 
 forever gave us the ordinance of the Northwest, and the Consti- 
 tutional Convention, sitting in Philadelphia, gave us the Con- 
 
?2 
 
 stitution of the United States. John Fiske, in his "Critical Pe- 
 riod of American History, declares that we can only understand 
 how the nation was formed by studying the creation of the na- 
 tional domain between the Mississippi and the Alleghanies. 
 
 Daniel Webster in his celebrated reply to Hayne, said: "I 
 doubt whether one single law of any law-giver, ancient or mod- 
 ern, has produced effects of more distinct, marked and lasting 
 character than the ordinance of 1787." 
 
 Senator Hoar, in his oration at the Centennial Founding of 
 the Northwest at Marietta, Ohio, in 1888, spoke of the ordinance, 
 along with the Declaration of Independence and the Constitu- 
 tion, as "one of the three title deeds of American Constitutional 
 liberty." 
 
 Judge Cooley, after a life spent in the territory carved out of 
 this cession, said: "No charter of government in the history of 
 any people has so completely withstood the tests of time and 
 experience; it was not only a temporary adaptation to a particu- 
 lar emergenc}' , but its principles were for all time and worthy of 
 acceptance under all circumstances. It has been a fitting model 
 for all subsequent government in America." 
 
 Too many elements entered into the history of this remark- 
 able document to warrant any attempt to fix its authorship upon 
 any one individual in the same manner that the honor of drafting 
 the Virginia Bill of Rights may be justly awarded to George 
 Mason. 
 
 There are several aspirants to the authorship of its most dis- 
 tinctive feature, to-wit, the slavery proviso. Webster in his 
 reply to Hayne in 1830 claimed the honor for Nathan Dane, of 
 Massachusetts, while Mr. Hayne and Thomas H. Benton claimed 
 it for Jefferson, and President King, of Columbia University, 
 claimed it for his father, Rufus King. The fact is that the slav- 
 ery proviso appeared in the very first draft of an ordinance for the 
 government of this territory, a draft still extant, and in the hand- 
 writing of Jefferson, submitted to the Continental Congress by 
 Jefferson in his form of a report on the very day of the Virginia 
 cession. While the proviso was at that time stricken out, yet 
 it later appeared in the ordinance of 1787, which became the per- 
 manent government of the territory. It is not surprising that 
 
33 
 
 the draft offered by Jefferson should make slavery forever im- 
 possible In this region. His whole life had been arraigned against 
 the institution, as to which he said in his notes on Virginia, "I 
 tremble for my country when I reflect that God is just, and that 
 His justice cannot sleep forever." In the full vigor of young 
 manhood as a member of the Virginia House of Burgesses in 1767, 
 he had caused a resolution to be introduced looking to the eman- 
 cipation of slaves. New lustre would have been added to the De- 
 claration of Independence, which Lord Brougham said should be 
 hung in the cabinets of kings, if his attack upon this institution 
 had not been stricken out when it appeared in its final form. We 
 are prepared, therefore, for the wide scope of the pioneer sugges- 
 tion contained in his original draft of ordinance, when, at the age 
 of 41, in the full tide of manhood's prime, and with prophetic 
 instinct, he asked Congress not only to exclude slavery from the 
 territory northwest of the Ohio, but also south and east of that 
 river. It is reasonable to suppose that if this feature had be- 
 come a part of the organic law of the nation thus early in its his- 
 tory, that slavery would have been excluded from all subsequent 
 territorial acquisitions of the United States. Indeed, this very 
 proposition of Jefferson to restrict the territorial area of slavery 
 and thus let it die a natural death, constituted the main plank 
 in the platform of the Republican party upon its organization. 
 It was upon his advocacy of this plank that Mr. Lincoln became 
 President of the United States. It may be well within the realm 
 of conjecture, but surely no violence is done to the imagination 
 to reflect that if this principle had been adopted upon the thresh- 
 old of our national existence there would have been no abolition 
 party, no Missouri Compromise, no Free Soil Platform, no ques- 
 tion of squatter sovereignty, no Dred Scott decision and no Civil 
 War. 
 
 In concluding observations upon this interesting document, we 
 may without danger of overstepping the truth adopt the lan- 
 guage of Schouler, "Here, as in the fundamental verities of the 
 Declaration of Independence, Jefferson's name blazons the 
 record." 
 
34 
 
 It has seemed not inappropriate to direct attention in this 
 brief manner to the unique place this ordinance occupies in our 
 history, for without the cession of Virginia there would have 
 been nothing upon which the ordinance eould operate, and hence 
 no occasion for its enactment, and W'ithout the ordinance an im- 
 perishable chapter in our history would never have been written. 
 Moreover, no apology need be made for the suggestion that the 
 issues involved in the contest from '61 to '65, now happily be- 
 yond the realm of controversy, would have had a far different 
 ending if the North in that Titanic struggle had been deprived 
 of the resources of the great States of Ohio, Indiana, Illinois, 
 Michigan, Wisconsin and Minnesota east of the Mississippi — 
 territory ceded to the nation in an hour of peril without coeicion 
 and without compensation by the spirit and patriotism of the 
 old Commonwealth. In view of this generous contribution to 
 the glory of the Republic, Virginians may well be pardoned if 
 they fail to see the justice of the dismemberment of their ter- 
 titory involved in the creation without her consent and against 
 her protest of the western portion of the State into the sover- 
 eign State of West Virginia, an act made possible only by the 
 strong arm of the National Government at a time when Virginia 
 was engaged with all her resources in defending the rights guar- 
 anteed to her by the Constitution of the United States and the 
 laws passed in pursuance thereof — an act not even justified as a 
 war measure, according to Mr. Blaine in his "Twenty Years in 
 Congress." This brilliant statesman, who cannot be charged 
 with bias in favor of the South, advocated the payment of a por- 
 tion of Virginia's debt by the nation, because of the signal act 
 of injustice involved in singling out this State for a punishment 
 that was not administered in equal or in any measure upon any 
 other member of the confederacy. Mr. Blaine further suggested 
 that, although Virginia was a public enemy while the war lasted, 
 she was entitled to as magnanimous treatment as was accorded 
 Mexico, to whom the nation paid under the terms of the treaty 
 of Guadalupe Hidalgo the sum of SI 5, 000, 000 for territory that 
 the former was compelled to surrender as a result of the triumph 
 of American arms. No claim against the nation has even been 
 urged by the State for this crowning act of humiliation. Instead 
 
35 
 
 she has proceeded in an orderly manner to submit for adjudica- 
 tion to the Supreme Court of the United States her claim against 
 West Virginia for her just proportion of the debt existing at the 
 time of the dismemberment and the findirtgs of that court, while 
 not yet concluded, have already established the justice and the 
 validity of her right to compel the payment by West Virginia 
 of a just proportion of this debt. Be it observed that this liti- 
 gation now pending is between two independent States, and we 
 are presented with the amazing spectacle of sovereign rights being 
 submitted for adjustment to the due and orderly process of the 
 law, with the complete assurance that, however large the judg- 
 ment finally rendered, it will be satisfied without the necessity 
 of putting in motion any of the machinery of that august tribu- 
 nal for its enforcement. The reason for such a situation is found 
 in the fact that these great States are convinced that the mem- 
 bers of this court in all the conclusions reached will meet out 
 even and impartial justice to the respective litigants, and that 
 no obligation will be imposed by its judgment upon either State 
 repugnant to justice or inconsistent with sovereignty. 
 
 All that is contemplated by the resolution of Senator Chilton 
 above referred to, which resolution, I am informed, has the full 
 approval of the Senators from Virginia, is to so extend the juris- 
 diction of the Court of Claims as to confer upon the States in- 
 terested the same rights of bringing suits against the govern- 
 ment as is now accorded individuals. This tribunal was es- 
 tablished in recognituion of the lofty principle that no corpora- 
 tion, Indian tribe or individual having claims against the United 
 States should be without a tribunal in which those claims could 
 be adjudicated. Shall this same privilege be withheld from a 
 sovereign State? The resolution does not contemplate or an- 
 ticipate what the findings of the court may be, but simply confers 
 upon it jurisdiction to hear and determine the rights of the States 
 interested growing out of the cession of Virginia of March 1, 
 1784, with the right of ultimate appeal to the Supreme Court of 
 the United States. True, the claim, if established, may be 
 large, but upon a full understanding of the situation is it 
 conceivable that the resolution will not meet with the ap- 
 proval of the repiesentatives in the National Congress of the 
 
FEB « 1913 
 
 ♦36 
 
 States carved out of this territory? Is it conceivable that the 
 States that have come into the Union since, now constituting a 
 majority, it is true, themselves the beneficiaries in a larger sense 
 of this signal act of generosity and inheritors of a common des- 
 tiny, would oppose the submission of the rights of Virginia and 
 her sister State, to a tribunal, which, whatever might be said of 
 its imperfections, still stands before the world as the most im- 
 portant and impressive court of justice? Is it conceivable that 
 the nation would refuse to have its own rights in the matter thus 
 adjudicated at a time when such a large body of thinking and in- 
 fluential citizens are looking forward to the establishment at an 
 early day of an international tribunal, with our own Supreme 
 Court as a model, to which, in lieu of the arbitrament of the 
 sword, may be submitted all questions, including those of so- 
 called national honor, arising among the nations of the earth? 
 
 84 
 
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