Motion Regarding the Western Lands
MS (NA: PCC, No. 36, I, 97–98). In the hand of Joseph Jones.
On 26 June 1780 Congress referred the long-standing and complicated issue of the “western frontiers” to a committee composed of James Duane, John Henry (Md.), Joseph Jones, Roger Sherman, and Willie Jones (N.C.). Its “report and resolve,” written by Duane, was laid before Congress on 30 June, debated on 2 September, and adopted on the sixth of that month, immediately before the introduction of Joseph Jones’s motion (Journals of the Continental Congress, XVII, 559–60, 580, 586, 802, 806–8). Pointing out how “indispensibly necessary” an early ratification of the Articles of Confederation was to the “public credit,” “the support of our army,” “the vigour of our councils and success of our measures,” “our tranquillity at home, and our reputation abroad,” “our present safety and our future prosperity,” and to “our very existence as a free, sovereign and independent people,” the committee in its “resolve” called, on the one hand, upon the states claiming “western country” to enable their delegates “to effectually remove the only obstacle to a final ratification of the articles,” and upon Maryland, on the other hand, to authorize its delegates “to subscribe” to those Articles.
Although the committee declined to judge which of the parties had the stronger case in law and in precedent, its resolution virtually asked Virginia to surrender its position, no matter how well justified it may have been, for the sake of the common cause. The reasons for Virginia’s stand, however, and for that of Maryland also, must be recalled in order to clarify the role of JM in the matter during the next three or four years. Until he seconded Jones’s motion, he apparently had concerned himself very little, if at all, with the western lands issue. Immediately after introducing his motion, Jones left for Virginia in order to be with his ailing wife and to persuade the Virginia legislature to accede to the request of Congress. Jones’s departure obliged JM to share prominently for the first time in the congressional deliberations about the West.
At its simplest, the controversy over this vast area west of the Appalachians was between the seven “landed” states (Massachusetts, Connecticut, New York, Virginia, North Carolina, South Carolina, and Georgia) holding more or less valid titles to territory there, and the other six states lacking such titles. Each of the seven, with the exception of New York, based its claim upon a royal charter which extended its western limit to the Pacific Ocean, or at least to the Mississippi River. South of the Ohio River, these jurisdictions of Virginia, the Carolinas, and Georgia did not seriously overlap, but between that stream and the Great Lakes and from the poorly defined western boundary of Pennsylvania to the Mississippi, Virginia claimed all, and New York, Massachusetts, and Connecticut claimed some, of the area. The alleged legality of Virginia’s title stemmed from the charter of King James I in 1609 to the London Company, granting that corporation two hundred miles north and south of Cape Comfort along the Atlantic Coast and “up into the Land, throughout from Sea to Sea, West, and Northwest.” Although this territory had been given to a company and not to its colony, although the charter had been rescinded by the Court of the King’s Bench in 1624, although later sovereigns by grants to other proprietors had encroached upon the seaboard frontage of Virginia, and although that colony made no vigorous protest on the strength of “its” old charter when Parliament in 1774 extended the southern limits of the Province of Quebec to the Ohio River, Virginians contended early in the Revolution that since their ancestors had never consented to the rescinding of “their” charter (which they declared to have been a contract between the King and the people of the colony, unalterable except by mutual consent) their ancient bounds “north and northwest of the Ohio” were still valid, or at least were more so than those of Massachusetts, Connecticut, or New York.
In their origin, the claims of these three colonies all postdated 1609. Connecticut’s charter of 1662 extended the colony “to the South Sea [Pacific Ocean] on the West parte,” while Massachusetts’ of 1691 was similarly generous. New York’s claim may have been as well grounded, but at least it was more vague about how far it extended toward the west. By the late seventeenth century, the five tribes of Iroquois Indians whose homes were within the province of New York exercised suzerainty over numerous groups of Algonquin Indians living between Lake Erie and the Ohio River. In 1684 Governor Thomas Dongan, in furtherance of New York’s economic and political rivalry with the French in Canada, declared the Iroquois to be subjects of the English Crown and under the immediate protection of his provincial government. Thus the geographic range of New York’s control became elastic toward the west, embracing the Iroquois (six rather than five “nations” by 1730), their vassal tribes, and, presumably, the territory over which they roamed.
During the Revolution, although these overlapping claims of four “landed” states, and the simultaneous dispute among New York, New Hampshire, and Massachusetts over the Vermont country, complicated the issue of the western territory, the heart of that controversy involved Virginia on the one side and the “landless” states of Rhode Island, New Jersey, Pennsylvania, Delaware, and Maryland on the other. Virginians were much the more insistent upon their legal right to the area north of the Ohio River because their own economic advantage and that of their commonwealth were heavily involved. As individual investors or as members of land companies, some of the “first gentlemen” of Virginia, including Washington and George Mason, owned, claimed to own, or wanted to own, vast tracts of land in that region. If their titles were not unassailable, the Virginia legislature could make them so. Before the Revolution, at a considerable expense of “blood and treasure,” Virginia had sent troops against offending Indians living north of the Ohio. During the Revolution, at a much heavier cost, the state was maintaining against the British in that region the forces commanded by Colonel George Rogers Clark. Furthermore, Virginia counted upon her public domain, both in Kentucky and in the Northwest, to make good her bounty-land pledges to her soldiers, preserve her financial credit, and pay her war debt.
Opponents of Virginia’s claim to the Northwest could not deny that “the United States in Congress Assembled” possessed no land of their own, but they argued with considerable force that “the landed states” should cede to the central government all or most of the territory west of the Appalachians. Although these opponents had no charters or other legal documents to cite in support of their position, they could defend it on grounds of justice, necessity, and patriotism. The title of Virginia would be worthless unless independence from Britain were won. The attainment of this goal hinged upon military victory, and it, in turn, upon the efforts and sacrifices of all the states, and not of Virginia alone. If a defeated Britain were compelled to withdraw from the West, it necessarily would cede its sovereignty over, and title to, that territory to the United States rather than to one or another of the “landed states.” And fortunately so, because the bond of common ownership thus created would come most opportunely to replace the broken tie of a common danger to hold the discordant states together. The United States might also be able to use this public domain to restore its financial credit and pay its huge war debt.
Furthermore, a union of states would more likely be lasting if they were nearer alike in size. Although each of the thirteen declared itself to be sovereign, and hence equal one to another, the leaders of Rhode Island, New Jersey, Pennsylvania, Delaware, and, above all, Maryland, were not blind to the gap between political theory and actuality. If success in the war merely resulted in exchanging a master across the Atlantic Ocean for several master-states close at hand, the “fruit” of the Revolution would hardly be true independence. Not a few of these leaders, however, masked without much success a personal financial stake behind these high-level arguments on behalf of a gift by the “landed states” of their western territories to the United States. These leaders singly, or organized in companies, had speculated in trans-Allegheny lands, including large tracts which conflicted in their vague boundaries with those claimed by Virginians. These speculators from the Middle States, centered largely in Philadelphia and in Maryland, could not hope to have their titles validated by the legislature of Virginia but might influence Congress in their favor if the territory in question became the property of the United States.
Early in the Revolution many of these crosscurrents converged with two other important subjects of discussion in the Continental Congress—(a) upon what terms a legal union of the states might be created; and (b) upon what terms patriots might be induced to enlist in the army for the duration of the war. In harmony with the sovereignty of each state, the Articles of Confederation provided not only that it would not go into effect until every state had ratified it (Preamble and Art. XIII) but also that “no State shall be deprived of territory for the benefit of the United States” (Art. IX). The latter guarantee was included upon the insistence of the delegates from “the landed” states and over the opposition of those from Maryland and other “landless” states. In September 1776 Congress passed the first of several acts promising bounties in land to men who would enlist in the “continental line” for the duration of the war. Having no territory of its own, Congress apparently relied for the fulfillment of these pledges upon state generosity. In the autumn of 1778 the Virginia legislature (Journal of the House of Delegates description begins Journal of the House of Delegates of the Commonwealth of Virginia; Begun and Held At the Capitol, in the City of Williamsburg.Beginning in 1780, the portion after the semicolon reads, Begun and Held in the Town of Richmond. In the County of Henrico. The journal for each session has its own title page and is individually paginated. The edition used, unless otherwise noted, is the one in which the journals for 1777–1781 are brought together in one volume, with each journal published in Richmond in 1827 or 1828, and often called the “Thomas W. White reprint.” description ends , October 1778, pp. 124–25) offered to make available from its western territory its due proportion of lands needed for this purpose but reserved its right of political jurisdiction over the promised acreage. Owing to this proviso, spokesmen for the small states spurned a proffer which would drain away many of their best young men and reduce their own land values and income from taxes, all for the benefit of a commonwealth which even then was the most populous and reputedly the most wealthy of the thirteen.
In November 1777, sixteen months after the original form of the Articles of Confederation was laid before Congress, that body adopted a much revised draft and asked each state to authorize its delegates to sign it (Journals of the Continental Congress, IX, 806–8, 842–43, 916, 918). By June of the next year, all states except Maryland, Delaware, and New Jersey had ratified the document. The main objection of these three was embodied in an amendment, submitted by the Maryland delegation but voted down by Congress, to empower that body to appoint commissioners “fully authorized … to ascertain and restrict the boundaries of … states which claim to extend to the river Mississippi, or South Sea” (ibid., XI, 631–32, 637). Notwithstanding this rebuff, New Jersey gave its assent to the Articles in November 1778, and Delaware in February of the next year (ibid., XII, 1161–64; XIII, 150, 186–88). Thereafter for two more years no legal union could be effected because of Maryland’s refusal to ratify. Its proximity to Virginia, its friction with its neighbor for 150 years over the control of Chesapeake Bay, and the interests of its land speculators combined with more statesmanlike considerations to account for its obstinacy.
On 20 May 1779, under instructions from their state legislature, the Virginia delegates in Congress tried without avail to have the Articles of Confederation go into effect for the twelve states which had agreed to the document (ibid., XIV, 617–18). The following day the Maryland delegates countered by making known the mandate from their state assembly forbidding them to sign the Articles until an amendment was added granting Congress discretionary power to create “free, convenient and independent governments” in the “common property” won “by the blood and treasure of the thirteen states” (ibid., XIV, 619–22). A month later the Virginia legislature, led by George Mason, took a similarly uncompromising stand by creating a land office to issue warrants for, and to sell, the state’s “waste and unappropriated lands” (Hening, Statutes description begins William Waller Hening, ed., The Statutes at Large; being a Collection of all the Laws of Virginia, from the First Session of the Legislature, in the Year 1619 (13 vols.; Richmond and Philadelphia, 1819–23). description ends , X, 50–65; Boyd, Papers of Jefferson description begins Julian P. Boyd et al., eds., The Papers of Thomas Jefferson (16 vols. to date; Princeton, N.J., 1950——). description ends , II, 136–38). In reprisal, the Maryland delegates on 30 October 1779 carried through Congress by a decisive vote, in spite of the protest of the representatives from Virginia and North Carolina, a resolution calling upon Virginia to stop selling land (Journals of the Continental Congress, XV, 1226–30).
As the year ended, the Virginia legislature adopted a “Remonstrance … to the delegates of the United American States in Congress Assembled,” written by George Mason, and transmitted it to the state’s delegates in Philadelphia for their use on an opportune occasion. After mentioning that, in deference to Congress’ request, the legislature had taken steps “to prevent present Settlements on the North West Side of the Ohio River,” this document reminded Congress that it had no land of its own and that it must not invade Virginia’s sovereignty by giving heed to petitions from land speculator companies (Vandalia and Indiana companies) asserting claims to territory in the West (Boyd, Papers of Jefferson description begins Julian P. Boyd et al., eds., The Papers of Thomas Jefferson (16 vols. to date; Princeton, N.J., 1950——). description ends , III, 630–32). Over seven weeks before the Virginia delegation, on 28 April 1780, presented this Remonstrance to Congress (Journals of the Continental Congress, XVI, 398), New York had moved the dispute into a new phase by offering both its “western lands” and its jurisdiction over them to the United States in order “to accelerate the foederal alliance” (ibid., XVI, 236; Burnett, Letters description begins Edmund C. Burnett, ed., Letters of Members of the Continental Congress (8 vols.; Washington, D.C., 1921–36). description ends , V, 21–22).
Other circumstances attending this “darkest year” of the Revolution worked more directly than New York’s cession toward ending the impasse between Virginia and Maryland. By the spring of 1780, with a British army moving northward from South Carolina and the foe raiding inward from Chesapeake Bay, Virginia for the first time since 1776 was in dire need of military aid from the middle seaboard states. La Luzerne, the French minister to the United States, took pains to make clear to Marylanders and others that his country would be the more eager to supply ships and soldiers to aid the hard-pressed patriots if they would complete their union by ratifying the Articles of Confederation. This military crisis brought converts to Jefferson’s view, advanced as early as 1776, that Virginia should create “colonies,” free and independent of its control, in the territory west of the mountains (Boyd, Papers of Jefferson description begins Julian P. Boyd et al., eds., The Papers of Thomas Jefferson (16 vols. to date; Princeton, N.J., 1950——). description ends , I, 353). John Walker, Richard Henry Lee, Joseph Jones, and especially George Mason, whose land speculations in that area would normally incline him to oppose its cession to the United States, rallied to Jefferson’s side (Jones to Jefferson, 30 June 1780, ibid., III, 472–75; Mason to JM, 2 August 1780, and n. 3).
Now that the much altered military outlook had fostered this change of opinion, these men readily discovered many reasons why Virginia’s own future advantage harmonized with an action so well calculated to promote the welfare of the United States. The western lands were too distant and too vast in extent to be governed effectively by Virginia. The expense to be expected from fighting the Indians there or from clearing their titles, and from surveying and administering the area, would exceed for years in the future the income flowing from it into the state treasury. Furthermore, by reducing through cession the size of its domain and the number of its inhabitants, Virginia would correspondingly lessen the financial quota apportioned to it by Congress. That body encouraged the Virginia legislature to be more conciliatory by referring to a committee on 23 May 1780, when the Maryland delegates were absent, a resolution stating that although the United States owned no land Congress was “bound to employ the common forces and common powers in support of the jurisdiction of the said states [over their land] whenever the same shall be invaded or infringed” (Journals of the Continental Congress, XVII, 452). On 2 June 1780, although somewhat contrary to the spirit of the recent Remonstrance of Virginia, its delegates helped to carry a resolution, over the opposition of Maryland and Rhode Island, to have Congress adjudicate the Vermont lands issues involving New York, New Hampshire, and Massachusetts (ibid., XVII, 482–84, 499). Later that month, Congress appointed the committee mentioned at the beginning of this note.
[6 September 1780]
A motion was made by Mr. [Joseph] Jones, seconded by Mr. [James] Madison, respecting the lands that may be ceded in pursuance of the foregoing report and resolve.1
That in case the recommendation of Congress to the States of Virginia North Carolina and Georgia to cede to the United States a portion of the unappropriated western Territory shall be complied with in such manner as to be approved of by Congress—the Territory so ceded shall be laid out in separate and distinct States at such time and in such manner as Congress shall here after direct, so as that no State be less than one hundred or more than one hundred and fifty miles square or as near thereto as circumstances will admit—and that upon such cession being approved of and accepted by Congress the United States will guaranty the remaining Territory to the said States respectively.
That such of the said States as have been at expence in subduing any of the British Posts [within] the Territory proposed to be ceded and in maintaining Garrisons and supporting civil Govern[ment] therein since the reduction of such Posts shall be reimbursed by the Continent the amount of such expence
That all the Lands to be ceded to the United States and not appropriated or disposed of in bounties to 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 Confederation according to their usual proportions or quotas of general charge and expenditure and shall be applied and disposed of For that purpose and no other whatsoever. And therefore all purchases and Deeds from any Indian or Indians or any Indian Nation or Nations for any Lands within any part of such ceded Territory which shall have been or shall be made for the use of any private person or persons whatsoever shall be deemed and taken as absolutely void.2
1. This introductory paragraph is not a part of the motion as found in the Papers of the Continental Congress, but is taken from Journals of the Continental Congress, XVII, 808.