i ^' BRIEF DEVELOPING TITLE TO PUBLIC LANDS FROM FUNDAMENTAL SOURCES FILED WITH CHAIRMAN FEDERAL RELATIONS COMMITTEE LEGISLATURE OF STATE OF CALIFORNIA BY GEORGE EDWARDS BERKELEY. CAL. JANUARY, I9I3 Gazette Publishing Co., Berkeley, Calif. Brief Developing Title to Public Lands By GEO. EDWARDS, Berkeley, Cal. The point to be determined by this brief is whether the United States holds the public lands AS OWNER, with power in Congress to do what it pleases with them ; or whether the United States holds the lands AS TRUSTEE and is bound by definite conditions and limitations. The reader should critically observe the circumstances and the gradual development of the words and phrases, which finally fixed the status of the public lands, in the settlement with Virginia, in the national constitution, and in the ordinance of 1787. The context of the word "property" also should be noted. Congressional citations may be verified and amplified by reference to the proceedings of the Continental Con- gress, on the dates given. The first portion of this brief contains the substance of the original documents that formed the basis of the holding by the United States of public lands. SOURCE OF PUBLIC LANDS. The United States secured control of the public lands by deeds from the original States. These deeds con- veyed the western lands. The states refused to convey to the United States/ the public lands/included within their recognized boundaries. The long negotiations be- tween Congress and the several states/over the public lands, culminated with the Virginia settlement and established by agreement/the absolute equality of each l^ new state with the original states. 551289 New Hampshire, Rhode Island, New York, Pennsyl- vania, Deleware, Maryland, within their recognized boundaries^ contained unoccupied former crown lands, or unoccupied proprietary lands, to the title and juris- diction of which they had succeeded. The treaty of peace with Great Britain confirmed title to the former crown lands. Pennsylvania paid the Penn heirs for their title. Con- necticut had no unoccupied crown lands, within its recognized boundaries; but had extensive claims, based on an original colonial charter, to what were then known as the Wyoming lands, in the territory claimed by Penn- sylvania; and to unoccupied land extending west from the western boundary of Pennsylvania to the Missis- sippi River. Massachusetts, New York, Virginia, North Carolina, South Carolina, and Georgia, in addition to considerable areas of unoccupied former crown lands and colonial proprietary lands, had claims to unoccupied western lands. The claims of Virginia, Maryland, Connecticut, and Massachusetts overlapped in the territory north west of the Ohio river; the lands of North Carolina, South Carolina and Georgia were farther south. The title to western lands of New York rested on treaties with Indians. The remaining titles rested on charters by the English crown. One charter to Virginia conveyed a strip of land 400 miles wide, extending from sea to sea, which was interpreted to mean from the Atlantic to the Pacific. Virginia also had the right of conquest of the north west territory. These territo- rial claims of western lands were indefinite in extent. ARTICLES OF CONFEDERATION. The Articles of Confederation placed supreme auth- ority in Congress. The articles contained the clause: Article IX. ''Provided, also, that no state shall be deprived of territory for the benefit of the United States," and the long and accrimonious negotiations by Con- gress with the several original states were to secure amendment of this clause. Congressional debate; June 22, 1778, "Article IX, after the words ''shall be deprived of territory for the benefit of the United States," insert "the United States in Congress assembled shall have the power to appoint commissioners, who shall be authorized and empowered to ascertain and restrict the boundaries of such of the confederated states, which claim to extend to the Missis- sippi or South Sea" after debate, action was postponed till tomorrow. June 23, 1778: After the words "for the benefit of the United States" add "provided nevertheless, that all lands within these states, 'the property' of which before the present war was vested in the crown of Great Britain, or out of which revenues for quit rents arise, payable to said crown, shall be claimed, taken and con- sidered, as 'the property' of these United States, and be disposed of as "the property" of these United States, and be disposed of and appropriated by Congress, for the benefit of the whole confederacy, reserving, however, to the states within whose limits such crown lands may be, the entire and complete jurisdiction thereof/' Passed in negative. STATES OPPOSING VIRGINIA; LANDS SHOULD BE FOR THE PEOPLE OF ALL THE STATES. June 25, 1778, New Jersey claims: The boundaries of the several states should be fixed definitely; wishes to ignore the proprietary rights of some states to the public lands; all vacant and unpatented crown lands within and without the states should be disposed of to defray expense of the war, and for general public pur- poses; jurisdiction of lands within states should rest with such states, but "the property" should be in the United States; states without public lands should not be left to sink under enormous debt, while those claim- ing public lands, by its sale, can easily be freed from their portion of the public debt. Jan. 23, 1779: Deleware insists that western lands should be held for the benefit of the United States and not for the benefit of states claiming title. Maryland bitterly resents claim of Virginia to western lands and fears the superiority of wealth and power in Virginia by sale of the vast western territory; questions the title of Virginia; intimates that Virginia was considering the erection of a state to the west, to be tributary to Virgi- nia; claims that western lands should be a common "property," subject to be parcelled out by Congress, into free, convenient and independent governments; instructs delegates not to agree to confederation until terms are satisfactory. REMONSTRANCE OF VIRGINIA. Within the western territory claimed by Virginia the Vandalia company had planned to erect a colony: There were also the Indiana, Illinois and Wabash companies claiming title from the Indians. They sought confirma- tion of title from Congress. The aggression of these companies and the demands of Maryland were met by Virginia by a Remonstrance, passed December 14, 1779, by the General Assembly of Virginia, and presented to Congress: Advising that Virginia had passed a law to prevent settlements within her territory, but desired to promote harmony and confidence between the states; is astonished that Congress has receivel and conten- anced petitions to erect separate governments from the Vandalia and Indiana companies, in defiance of the authority, laws asd jurisdiction of Virginia; if Congress should arrogate to themselves a right of adjudication, unwarranted by and expressly contrary to the funda- mental principles of the Confederation, superseding or controlling the internal policy, civil regulations and municipal laws of Virginia, or any state, it would be a violation of public faith and of the sovereignty of such state. The United States hold no territory but in right of some one individiual state, whose boundaries are fixed by charters. When Virginia acceded to union, her sovereignty and jurisdiction, within her own territory, were reserved and secured to her, and can not be altered or infringed without her consent. Virginia has already freely offered to Congress, without cost, lands as boun- ties to troops on Continental establishment, subject to distribution by Congress, and the offer still holds. But Virginia does remonstrate and protest against any juris- diction or right of adjudication of Congress, upon the petition of the Vandalia and Indiana companies, or on any other matter or thing subversive of the internal policy, civil government, or sovereignty of Virginia or of any state. VIRGINIA ASKED TO RECONSIDER OPENING LAND OFFICE. October, 30, 1779, Congress recommended, that as it appeared that the opening of a land office in Virginia, for the purpose of locating land, unappropriated at the time of independence, has produced much uneasiness, disputes and controversy, and greatly weakened the United States by the emigration of inhabitants to parts remote from defense; therefore it is earnestly recom- mended to Virginia to reconsider opening of the land office; and it is recommended to Virginia and all other states in like circumstances, to forbear selling or issuing warrants for such unappropriated lands, or granting the same during the present war. NEW YORK READY TO CONVEY. April 1 , 1 780, New York authorized Congress to define the western boundaries of New York; declared that New York was ready to cede or relinquish her public lands, either with the jurisdiction and right of preemption of the soil, or the right of preemption only, for the use and benefit of such of the United States, as shall become members of the federal alliance, and for no other use or purpose whatever. Said lands shall be disposed of in such manner only as Congress shall direct. CONGRESS EVADES CONTROVERSY AND RECOMMENDS TRANSFER. September 6, 1780, Congress considered the instruc- tions of Maryland regarding the Articles of Confedera- tion; also act of New York, on same subject; also re- monstrance of Virginia. Congress decided that it was unnecessary to examine into the merits or policy of the general assembly of Maryland; or of the remonstrance of Virginia. They involved questions that were de- clined on mature consideration, when the Articles of Confederation were debated. Nor could such questions he revived with any prospect of conciliation. It ap- pears more advisable to press on the states, which can remove the embarrassments respecting the western country, a liberal surrender of a portion of their territo- rial claims, since they cannot be preserved entire, with- out endangering the stability of the general confed- eracy; to remind them how indispensably necessary it is to establish the federal union on a fixed and perma- nent basis; how essential to public credit and confidence to support our army, to the vigor of our councils and success of our measures; to our tranquility at home, and our reputation abroad; to our existence as a free, sover- eign and independent people, Congress asks the respec- tive legislatures to give a full and impartial consideration to the subject; especially in view of the act of New York which is calculated to accelerate the federal alliance, by removing, as far as depends on that state, the impedi- ment arising from the western country. That this re- port be transmitted to the legislatures of the several states with the earnest recommendation that the states, claiming western territory, 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. 8 CONGRESS OFFERS TO ACCEPT LANDS UNDER DEFINITE CONDITIONS. October 10, 1780, Congress resolved that the lands which may be ceded to the United States by any partic- ular state, pursuant to recommendation of September 6, 1780, shall be disposed of for the common benefit of the United States: and be settled and formed into dis- tinct republican states, which shall become mem- bers of the federal union, and have the SAME rights to sovereignty, freedom and independence, as the other states. That the reeisonable war expenses of any state, shall be reimbursed. That the said lands shall be granted or settled at such times and under such regulations as shall hereafter be agreed upon by the United States in Congress assembled, or any H'ine or more of them. COUNTER TENDER OF VIRGINIA. The general Assembly of Virginia, January 2, 1781, as the safety, strength and happiness of United States depended on ratification of Articles of Confederation, re- solved to cede to United States all right, title and claim to the lands North West of the Ohio river, conditioned: 1st: That the territory ceded shall be laid out into suit- able states; that the states so formed shall be distinct republican states and be admitted members of the Union, having the SAME sovereignty, freedom and in- dependence as the other states. 2d : That Virginia be fully reimbursed expense of conquest North West of Ohio. 3d: That the settlers who have professed them- selves citizens of Virginia shall have their titles con- firmed and be given military protection. 4th: That Col. Clark who conquered the territory be given for self and troops 150,000 acres. 5th: That, if lands South East of Ohio reserved for troops of Virginia are insufficient, then good land to North West be added to supply defi- ciency. 6th: That adl the lands, not so reserved shall be considered a common fund for the benefit of the United States, and shall be faithfully and bona fide disposed of for that purpose and for no other use or purpose what- ever. 7th : That all purchases or deeds from Indians to private persons be declared void. 8th: That all the re- maining territory of Virginia between Atlantic and the South East side Ohio be guaranteed to Virginia by United States. That this cession of Virginia shall be void unless all the states ratify the Articles of Confeder- ation and all other states shall also cede their claims to United States. MARYLAND OPPOSES VIRGINIA. February 12, 1781, Maryland, which held no charter to western lands, authorized delegates to subscribe to Article of Confederation, but declined to relinquish any right she might have with the other United States in the back country; but claimed the same as fully as ever, relying on the justice of the several states; declared that no article in the confederation can or ought to bind this or any other state, to guarantee any extensive claim of any particular state to the soil of said back lands, or any such claim of jurisdiction over said lands, or inhabitants thereof. DEED OF NEW YORK. March 1st, 1781, New York delegates preparing to deed western lands to United States, declared that in view of condition set up by the legislature of Virginia 10 that the United States should guarantee her bound- eries, New York delegates also would require the United States to guarantee bounderies of New York with power otherwise in people of New York to ratify or disapprove of conveyance. Thereupon they conveyed title of New York to western lands to United States, and cede, transfere and forever relin- quish to and for the only use and benefit of such of the states as are or shall become parties to the Articles of Confederation, all right, title, interest, jurisdiction and claim to said lands; to be granted, disposed of and ap- propriatedy in such manner only as Congress shall direct. VIRGINIA ASSERTS HER RIGHTS. October 16, 1781, the delegates of Virginia, as com- mittee of Congress was disposed to investigate claims of the United Illinois and Wabash Companies, of the In- diana Company, as well as claims of certain individuals to western lands, therefore the said delegates of Virginia holding that no claim ought to be received adverse to Virginia, or any state; because if the lands, to which pretensions are made, lie within the limits of such state, by its authority alone can the merits of their claim be enforced, the jurisdicion of Congress in territorial questions, being limited to an adjustment of the con- flicting claims of different states. If the lands claimed lie within Virginia, or any state. Congress are interdicted from cognizance. Therefore Virginia requested a vote on the question: Whether it was the intention of Congress to authorize the committee to receive claims and hear evidence in behalf of said companies, adverse to the H claims of Virginia, New York or Connecticut. Vote on previous question and lost. VIRGINIA REQUESTS REPORT OF COMMITTEE ON LANDS. COMMITTEE ADVISES REJECTION OF TERMS OF VIRGINIA. May 1st, 1782, Virginia called for report of commit- tee on the cessions of New York, Virginia, and Connec- ticut; and on the petitions of the Indiana, Vandalia, Illinois and Wabash companies. Accordingly, the com- mittee reported that New York and Connecticut had laid before the committee their several claims to lands, with- in their states: that Virginia declined any elucidation of her claim, either to the lands ceded in the act referred to committee, or the lands requested to be guaranteed to Virginia by Congress: but delivered to the committee the written paper annexed. Having examined all information, the committee re- commended: That Congress accept cession of New York, 1st as it appeared that all the land of the Six Nations of Indians had been placed by these tribes under the protection of England, with jurisdiction resting in New York. 2d: That New York had supported said Six Nations with blood and treasure for 100 years. 3d: That England always treated the terri- tory of the Six Nations as appendant to New York. 4th: That Massachusetts, Pennsylvania, Maryland and Virginia have by their public acts recognized the Six Nations as appendant to New York. 5th: That United States will be vested with the jurisdic- tion of this whole western territory, by accepting the cession. That Congress earnestly recommend to Massa- chusetts and Connecticut to release, without delay to United States, all claims and pretentions to the 12 western territory, without any conditions or re- strictions whatever. That Congress cannot accept the cession pro- posed by Virginia, consistently with the interests and sovereignty of the United States and the duty they owe to their constituents; for the following reasons: 1st: It appears to the committee that all the lands claimed by Virginia are within the claims of Massachusetts, Connecticut and New York, as part of the lands of the Six Nations. 2nd: A great part of the lands claimed by Virginia and requested to be guaranteed by Congress, is also within claims of New York. 3d: A large part of these lands are west of the boundary of Virginia, as established by Great Britain. 4th: That a large tract of said land had been legally sold, under the government of Great Britain, before the declaration of independ- ence, by persons claiming title. 5th: In 1763, a large part of this territory was separated and ap- pointed as a distinct government and colony by Great Britain, with the knowledge and approval of Virginia. 6th: The conditions annexed to the cession of Virginia are incompatible with the honor, interest and peace of United States, and are there- fore inadmissible. That it is earnestly recommended to Virginia to reconsider their act of cession and by a proper act cede to United States all claims and pretensions to the western lands, free from any conditions or re- strictions whatever. As to Indiana, Vandalia, Illinois and Wabash companies, during the hearing of these claims Vir- ginia delegates refused to attend hearing. Com- mittee believes purchases of Indiana company were bona fide, for a valuable consideration, according to transactions with Indians. Therefore, it should be confirmed, provided that jurisdiction be given to United States. It further appears that Vandalia was promoted at great expense by subjects of Great Britain, who were enemies of United States, as well as by citizens of the United States. The extensive 13 territory was to be erected into a colony. But it is incompatible with the interests, government and policy of the United States to permit such extrav- agant grants to individual citizens. It, therefore, is recommended that the United States reimburse the expense of all, who are citizens of the United States, provided that all claims to said land are released to the United States, payment to be made by grants to each member individually. It is recommended that the petition of the Illinois and Wabash companies be denied as being irregular in dealing with Indians; are indefinite in extent; that the Wabash purchase was made after Congress had appointed an agent for Indian affairs; that the Six Nations claim the land, in opposition to the Indians granting it. It is recommended that Congress declare that it alone has power to deal with, or purchase land from Indians, outside the bounds of the several states. That no citizen of the United States, or of any state should purchase unappropriated lands from the Indians. It is recommended that Congress permit new settlements, on unappropriated lands to be erected into a new state, which shall make good all reason- able engagements to the officers and sildiers of the United States: That the bona fide settlers shall be confirmed in their titles, when a new state is erected* It is recommended that Congress agree to reim- burse to each state all reasonable expense of war. It is recommended that Congress shall assert no ''property" in the soil, against the Indians, except by regular purchase and treaty. RECOMMENDATIONS NOT APPROVED. This detailed report of the committee on the western lands was not approved by Congress. LANDS TO PAY PUBLIC DEBT. September 6, 1782, Congress adopted the following resolutions: If states claiming "exclusive property" in 14 the western lands will make cessions to United States agreeable to the recommendations of Congress Septem- ber 6th and October 10th, 1780, it would be an import- ant fund for the discharge of the national debt. That the cessions of states, conforming to these recommendations be accepted. That the states, making cessions, not con- forming to these recommendations, be recommended to reconsider and re-submit them to Congress. If this recommendation is complied with, Congress will not in- terfere with the determinations of particular states, re- garding private property in lands within those cessions. ATTACK ON VIRGINIA RENEWED. September 13th, 1783, Congress resumed consider- ation of the Virginia cession. Attack on claims of Virgin- ia to western lands was renewed and it was moved that the bounderies of the several states be determined; that the vast territory outside these limits to the west were sub- ject to .no just claim of any state and should be consid- ered as a common "property," subject to be parcelled out by Congress into free, convenient and independent gov- ernments at such times as Congress shall direct: and that as Maryland declared she did not intend to relinquish any right or interest in the western territory, as her membership in the general confederacy established her rights to the western lands, and that no state can, or ought to, exercise any sovereignty, legislation or juris- diction there: that the sovereignty had rested in Great Britain and this had been transferred to the United States by the treaty of peace. On vote, consideration was postponed. 15 AMENDED REPORT OF COMMITTEE ON VIRGINIA'S TENDER; AS APPROVED. Thereupon, the original report, as amended, was taken up for consideration by Congress, covering the tender of Virginia, by her legislatures of January 2nd, 1781. The report sets up in full the oflfer of Virginia and the committee are of the opinion that the 1st requirement that the territory should be laid out into distinct republican states, having the SAME rights of sovereignty, freedom and independence as the other states was provided for in the tender by Congress October 10th, 1780: That the 2d condi- tion of Virginia that she be reimbursed her war ex- penses in conquering the western territory, should be met, in addition to the guarantees of the con- gressional act October 10, 1780, by the selection of commissioners to adjust details: That the 3d condi- tion requiring the confirmation of the possession and titles of settlers be approved: That the 4th, 5th and 6th conditions of Virginia, (4th provision for the Virginia troops that conquered that terri- tory; 5th, allowing additional lands to regular troops, of Virginia, if the land South East of Ohio proved insufficient; 6th, that all the remaining land should be considered a common fund for the use and benefit of such of the United American States, as have become or shall become members of the confederation, and should be faithfully and bona fide disposed of for that purpose, and for no other use or purpose whatever,) were reasonable and should be agreed to by Congress; as to the 7th con- dition of Virginia, that all purchases and deeds from Indians made for the benefit of private persons should be declared void, as in conflict with the charter rights of Virginia, the committee advised that it would be improper for Congress to declare these purchases absolutely void and that the 6th condition, as agreed to regarding the disposition of 16 lands was sufficient; as to the last condition of Vir- ginia, requiring Congress to guarantee to Virginia the remainder of her territory, it had been policy of Congress to avoid going into conflicting claims be- tween different states and to ask such a guarantee was either unnecessary or unreasonable. The committee viewing the whole matter be- tween Virginia and the United States, recommended that, if Virginia make a cession conforming to this report that it be accepted. On vote, this report was approved by Congress. A NEW STATE. October 14, 1783, report to Congress by committee on Indian affairs was adopted as follows: Whether it was not wise and necessary to erect in the western territory a distinct government as well as to do justice to the army of the United States, who were entitled to lands as bounty; also to accommodate purchasers and settlers, and that a plan for temporary government be devised, until the inhabitants were able to form a permanent con- stitution, as citizens of a free sovereign and independ- ent state; provided said constitution shall not be incom- patible with republican principles, which are the basis of the constitution of the republican states of the union. THE DEED OF VIRGINIA. March 1st, 1784, moved in Congress that the follow- ing deed of Virginia be accepted: To all who shall see these presents, we Thomas Jef- ferson, Samuel Hardy, Arthur Lee and James Mon- roe, the underwritten delegates for the common- wealth of Virginia, in the Congress of the United States of America, send greeting: 17 Whereas, the general assembly of the common- wealth of Virginia, at their session begun on the 20th day of October, 1783, passed an act entitled "an act to authorize the delegates of this state in Congress, to convey to the United States, in Con- gress assembled, all the right of this common- wealth, to the territory north west of the river Ohio," in these words following, to wit: ''Whereas the Congress of the United States did, by their act of the 6th day of September in the year 1780, recommend to the several states in the union having claims to waste and unappropriated lands in the western country, a liberal cession to the Unitel States, of a portion of their respective claims, for the benefit of the union; and whereas this commonwealth did, on the 2d day of January, in the year 1781, yield to the Congress of the United States, for the benefit of the said states, all right, title and claim, which the said common- wealth had to the territory to the northwest of the Ohio, subject to the conditions annexed to the said act of cession. And whereas the United States, in Co.ngress assembled, have, by their act of the 13th of September last, stipulated the terms on which they agree to accept the cession of this state, should the legislature approve thereof, which terms, although they do not come fully up to the propositions of this commonwealth, are conceived on the whole, to approach so nearly to them, as to induce the state to accept thereof, in full confi- dence, that Congress will in justice to this state, for the liberal cession she hath made, earnestly press on the other states, claiming large tracts of the waste and uncultivated territory, the propriety of making cessions equally liberal, for the com- mon benefit and support of the union. Be it enact- ed by the general assembly, that it shall and may be lawful for the delegates of this state to the Con- gress of the United States, or such of them as shall be assembled in Congress, and the said delegates, or such of them so assembled, are fully authorized 18 and empowered, for and in behalf of this state, by proper deeds or instruments in writing, under their hands and seals to convey, transfer, and as- sign and make over unto the United States in Con- gress assembled, for the benefit of the said states, all right, title and claim, as well in soil as jurisdic- tion, which this commonwealth hath to the terri- tory or tract of country, within the limits of the Virginia charter, situate, lying and being to the north west of the river Ohio, subject to the terms and conditions in the before re-cited act of the 1 3th day of September last; that is to say, upon the con- dition that the territory so ceded shall be laid out and formed into states, containing a suitable extent of territory, not less than 100, nor more than l5o miles square, or as near thereto as circumstances will admit, and that the states so formed shall be distinct republican states, and admitted members of the Federal union; having the SAME rights of sovereignty, freedom and independence as the other states. That the necessary and reasonble ex- pense of this state, in subduing any British posts, or in maintaining forts and garrisons within and for the defense, or in acquiring any part of the ter- ritory, so ceded, or relinquished, shall be fully re- imbursed by he United States; and that one com- missioner shall be appointed by Congress, one by this commonwealth and another by these two com- missioners, who, or a majority of them, shall be authorized and empowered to adjust and liquidate the account of the necessary and reasonable ex- penses incurred by this state, which they shall judge to be comprised within the intent and mean- ing of the act of Congress, of the 10th of October, 1780, respecting such expenses. That the French and Canadian inhabitants and other settlers of the Kaskashies, St. Vincents and the neighboring vil- lages, who have proffered themselves citizens of Virginia, shall have their possessions and titles con- firmed to them, and be protected in the enjoyment of their rights and liberties. That a quantity not 19 exceeding 150,000 acres of land promised by this state, shall be allowed and granted to the then Colonel, now General G. R. Clarke and to the of- ficers and soldiers of his regiment, who marched with him when the posts of Kaskaskiers and St. Vincents were reduced, and to the officers and sol- diers that have since been incorporated into said regiment, to be laid off in one tract, the length of which not to exceed double the breath, in such place on the north west side of the Ohio, as a majority of the officers shall choose, and to be afterwards divided among the said officers and soldiers in due proportion, according to the laws of Virginia. That in case the good lands on the southeast side of the Ohio, upon the waters of the Cumberland river, and between the Green river and Tennessee river, which have been reserved for the Virginia troops upon continental establishment, should, from the N. Carolina line, bearing in further upon the Cum- berland lands than was expected, prove insufficient for their legal bounties, the deficiency should be made up to the said troops, in good lands, to be laid off between the rivers Scioto and the Little Miami, on the north west side of the river Ohio, in such proportions as have been engaged to them by the laws of Virginia. That all the lands within the territory so ceded to the United States, and not re- served for or appropriated to any of the before mentioned purposes, or, disposed of in bounties to the officers and soldiers of the American army, shall be considered as a common fund for the bene- fit of such of the United States, as have become or shall become members if the confederation, or fed- eral alliance of the said states, Virginia, inclusive, according to their usual respective proportions in the general charge and expenditure, and shall be faithfully and bona fide disposed of for that pur- pose and for no other other use or purpose what- ever. Provided that the trust hereby reposed in the delegates of this state, shall not be executed, unless three of them at least are present in Con- gress. 20 And whereas the said general assembly by their resolution of June 6th, 1783, had constituted and appointed us, the said Thomas Jefferson, Samuel Hardy, Arthur Lee and James Monroe, delegates to represent the said commonwealth in Congress for one year, from the first Monday in November, then next following, which resolution remains in full force: Now therefore know ye, that we, the said Thomas Jeflferson, Samuel Hardy, Arthur Lee, and James Monroe, by virtue of the power com- mitted to us by the act of the said general assem- bly of Virginia, before recited, and in the name and for and in behalf of the said commonwealth, do by these presents convey, transfer and assign and make over unto the United States, in Congress as- sembled, for the benefit of the said states, Virginia inclusive, all right, title and claim, as well of soil as of jurisdiction, which the said commonwealth hath to the territory, or tract of country, within the limits of the Virginia charter, situate, lying and be- ing to the northwest of the river Ohio to and for the uses and purposes and on the conditions of the said recited act. In testimony hereof, we have here- unto subscribed our names and affixed our seals, in Congress the of in the year of our Lord, 1 784, and of the independ- ence of the United States, the eighth. VIRGINIA'S DEED SIGNED, SEALED, DELIVERED AND AC- CEPTED. Congress thereupon ; Resolved that the United States in Congress assembled are ready to receive this deed, whenever the delegates of Virginia are ready to execute the same. Passed by vote in affirmative. The delegates of Virginia then proceeded and signed, sealed and delivered the said deed. Whereupon Con- gress adopted the following resolution: That delegates 21 of the commonwealth of Virginia, having executed the deed ; Resolved that the same be recorded and enrolled among the acts of the United States in Congress as- sembled. STATUS OF PUBLIC LAND SETTLED. The transfer of the Virginia western lands ended the long, bitter and dangerous controversy over the public lands, which nearly destroyed the Union. A number of deeds, from other states, will be noted in cronolog- ical order, but they followed as a result of this settle- ment with Virginia. From the date of this transfer, up to five or six years ago, Congress has been controlled by this agreement. And Congress on receiving this deed at once developed plans to make all needful rules and regulations for faithfully and bona fide disposing of the public territory, in harmony with the rights of the United States, to retain the profit of sale, and the rights of the particular future states; that the lands would be erected into states, that should be republican and on a perfect equality with the original states in sovereignty, freedom and independence, and for no other use or pur- pose whatever. A DEFINITE CONTRACT MADE. It is to be noted carefully that this transaction between Virginia and the United States has all the elements of a definite contract. After years of negotiations, Con- gress, September 6th, and October 10, 1780, made a lender to the states, Virginia included. On January 2d, 1781, the legislature of Virginia made a counter tender of the terms on which she should cede her lands. On May 1st, 1782, the committee of Congress recom- 22 mended that the tender of Virginia be rejected and that Congress ask Virginia to make the transfer free from all conditions and limitations, which Congress refused to do. On September l3th, 1783, Congress made a modi- fied tender to Virginia. And March 1st, 1784, Virginia, waiving minor details, accepted the terms of Congress and transferred the consideration, her lands, which Con* gress formally accepted in behalf of the United States. This contract as a definite binding agreement, is the substance out of which the present national constitu- tion was fashioned, for a union of equal states; it is the foundation on which our nation has been built. OWNERSHIP OF SOIL AND SOVEREIGNTY INSEPERABLE. The fundamental thought which controlled these long negotiations was that, in order to erect sovereign states the ownership of the soil must pass from the United States to the new state. When the ownership of the soil, covering an extensive area, rests permanently in a sovereign power, the full political sovereignty will, by irresistable sequence, finally rest there also. It would have been an invasion of the sovereignty of the original states to allow the United States to acquire the public lands, within their recognized boundaries; accordingly Congress rejected the proposal when made June 23, and June 25, 1778, and January 23rd, 1779. EQUALITY OF STATES. The making of this contract with Virginia, definitely established the equality of each new state, with the original states. The perfect equality of the states rests on the transfer of the public lands to the United States; 23 and their transfer by the United States to the jurisdic- ion, taxing power, eminent domain and sovereignty of the states where they lie. ORDINANCE OF 1784. During the month following receipt of the deed of Virginia, Congress commenced the work of outlining rules and regulations for bona fide disposing of the pub- lic lands, April 20 and 21, 1784, and erecting states on them. And April 23rd, 1784, the first ordinance relating to the western territory, formulated by Mr. Jefferson of Virginia, was adoped: The land should be offered for sale and divided into distinct states; the settlers should erect a temporary government, taking the constitution and laws of one of the original states; when 20,000 in- habitants are reached, they may erect a permanent gov- ernment; these governments must be; 1st, permanent members of the United States; 2d, shall be subject to the Articles of Confederation in the same manner as the original states and to the acts and ordinances of the United States; 3d, shall in no case interfere with the primary disposal of the soil by the United States, nor with the ordinances and regulations which Congress may find necessary for securing title to bona fide pur- chasers; 4th, shall bear their share of the public debt; 5th, no tax shall be imposed on lands, "the property*' of the United States; governments shall be republican; 7th, lands of non-resident proprietors shall not be taxed higher than those of residents, before adm.ission to United States; when population is equal to the smallest original states, shall be admitted to Union, on equal 24 footing with the original states; while under temporary government, shall keep a member in Congress, with right of debating, but no vote. COMPACT A FUNDAMENTAL CONSTITUTION These preceeding articles shall be formed into a charter of compact; shall be duly executed by the presi- dent of the United States in Congress assembled, under his hand and the seal of the United States; shall be pro- mulgated; and shall stand as fundamental constitutions between the thirteen original states and each of the new states now newly described, unalterable, from the date of the sale of any part of the territory of such state, pursuant to this resolve, but by the joint consent of the United States in Congress assembled and of the p2irtic- ular state within which such alteration is propsed to be made. PLANNING SURVEYS. May 28, 1784, Congress considered a detailed plan, of its rules and regulations for disposing of the public lands, going into surveys and the offices necessary to mark out the lands and conduct sales. On vote this plan was defeated. These details occupied a large amount of time in Congress during April, May and June, 1785, also during May and June, 1786, and were brought to a working basis. DEEDS OF MASSACHUSETTS AND CONNECTICUT. April 19th, 1785, Congress accepted the deed of Mass- achusettes of a strip 70 or 80 miles wide extending to the Mississippi river. This deed was conditioned by the limitations that the lands were, 25 "to be disposed of for the common benefit of the United States," "agreeably to a resolve of Con- gress of October 10, 1780," and conveyed both soil and jurisdiction. May 20, 1785, Congress debated a method of dispos- ing of western lands; also invited North Carolina to deed her lands, which lay south of the Virginia lands. May 25, 1786, Congress debated getting claim of Con- necticut in Virginia territory. July 7th, 1786, Congress asked Virginia to consent to five states being erected in western territory, instead of three. September 14, 1786, Connecticut made her first deed to Congress of her western lands; and April 28, 1800, deeded to Congress her jurisdiction within the ''Western Reserve." The deeds of Connecticut were free from all limitations and conditions. AMENDMENT OF CONSTITUTION. • The articles of confederation provided for amend- ment as follows : Article XIII. The Articles of this Confederation shall be insoluably observed by every state, and the Union shall be perpetual; nor shall any alter- ation at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the signitures of every state. The Articles of Confederation being found defective, Virginia took the lead in urging on the United States a convention to amend the constitution. Congress yield- ing to strong pressure, issued a call February 21, 1787, for a constitutional convention, which met in Philadel- phia, May 14, 1787, and opened for business May 28th, 26 1787. Congress also was in session in Philadelphia at the same time, and prominent men were members of both bodies. ORDINANCE OF 1787. July 13th, 1787, Congress finding that the ordinance of April 23, 1784, which was the first general body of rules and regulations necessary for bona fide disposing of the public lands, required amendment, repealed the original ordinance and adopted the famous ordinance of 1787, which ever after remained the fundamental charter for the government of territories and the erection of new states. This ordinance consisted of two parts: The first part related to the transient organization of the territory. The second part was intended to last as long as the United States should last, being a declaration of fundamental principles. It provided for a temporary government; for the descent of property; the appointing of officers by Congress; provision for temporary laws; the organization of a legislature; subdivision into coun- ties and townships; election of a delegate to Congress. The second part of the ordinance of 1787 provided: For extending the fundamental principles of civil and religious liberty; to fix and establish those principles as the basis of all laws, constitutions and governments, which forever hereafter shall be found in the said ter- ritory; to provide for establishing permanent govern- ments and for their admission to a share in the federal councils on an equal footing with the original states; 27 CONSENT OF STATES REQUIRED FOR ALTERATIONS. that it is hereby ordained and declared that the follow- ing articles shall be considered as articles of compact be- tween the original states, and the people and states of the said territory, and forever remain unalterable, unless by common consent. Article 1st, religious freedom; Article 2d, benefit of habeas corpus, representation in legislature, right of bail except for capital offense, no cruel or unusual punishment, no man deprived of liberty but by judgment of his peers or the law of the land, compensation for person and property taken for public purpose, contracts shall be maintained; Article 3d, religion, morality and schools shall be encouraged, good faith to Indians; Article 4th, the said territory and states organized out of them shall forever remain a part of the United States, the inhabitants shall pay their pro- portion of the federal debt, which shall be by taxes levied by their legislatures; PRIMARY DISPOSAL OF SOIL IN UNITED STATES. that the legislatures of those districts shall never inter- fere with the primary disposal of the soil by the United States in Congress assembled, nor with any regulations Congress may find necessary for securing the titles in such soil to bona fide purchasers, no tax shall be im- posed on the lands "the property" of the United States, in no case shall non-resident proprietors be taxed higher than residents; CONTROL OF NAVIGABLE STREAMS that the navigable waters leading into the Mississippi and St. Lawrence shall be common highways and for- 28 ever free both to the inhabitants of the territory and of the United States and of the states that may be admitted to the Union. FORMATION OF NEW STATES. Article 5th. There shall be formed in said territory not less than three nor more than five states, the boun- daries to be defined as soon as Virginia shall alter her act of cession and consent thereto; said states shall be admitted to the Union on an equal footing in all respects whatever and shall be at liberty to form a permanent constitution and state government, provided the consti- tution and government as formed shall be republican. Article 6th. There shall be no slavery, but slaves escap- ing from an original state may be reclaimed. CONSTITUTIONAL CONVENTIOI^. From May 28, to September 30, 1787, the constitu- tional convention continued its deliberations, covering the same interval during which Congress had debated and adopted the ordinance of July l3th, 1787. Virginia submitted an outline for remodeling the constitution and this was the foundation that was built upon, in the convention. June 5th, 1787, in convention was consid- ered the proposition *'for guaranteeing to states repub- lican government, and territory," but was postponed. The territory referred to being primarily the territory within the recognized boundaries of the original states. The delegates were mainly engrossed with the many difficulties that had arisen between the original states. June 11, 1787, the convention again considered the 29 above and amended to ''that a Republican constitution and its existing laws ought to be guaranteed to each state of the United States." On July 11th, 1787, Ran- dolph of Virginia in convention declared that "Congress had pledged the public faith to the new states, that they shall be admitted on equal terms. They never would or ought to accede on any other." This declaration met with no dissent whatever in the convention. July 26th, 1787, Mr. Pickney disliked the exclusion of the public debtors. It went too far. It would exclude persons who should purchase western territory and might be an obstacle to the sale of the latter. DEVELOPMENT OF CLAUSE RELATING TO PUBLIC LANDS. August 18th, 1787, Mr. Madison of Virginia submit- ted for the committee of detail, the following powers as proper to be added to those of the general legislature: "To dispose of the unappropriated lands of the United States." "To institute temporary govern- ments for new states arising therein/' This was referred unanimously to the committee of detail. August 30, 1787, Mr. Carrol moved that: "Nothing in this constitution shall be construed to alter the claims of the United States or of the indi- vidual states to the western territory, but all such claims be examined into and decided upon by the Supreme Court of the United States." Mr. Morris moved to .postpone this in order to take up the following: "The Legislature shall have power to dispose of and make all needful rules and regulations respect- ing the territory and other property belonging to 30 the United States; and nothing in this constitution contained, shall be so construed as to prejudice any claims of the United States or of any particular state." On vote this construction was agreed to in the con- vention, Maryland alone voting in negative. CONSTITUTION SUBMITTED TO CONGRESS. The new, or present, constitution was completed by the convention and submitted September 20, 1787, to Congress for approval. Amendments were proposed in Congress but voted down by Virginia and the great maj- ority,and September 28, 1787, Congress submitted the constitution to the legislatures of the several states for adoption. DEED OF SOUTH CAROLINA. South Carolina, August 9th, 1787, deeded to Con- gress her strip of land 12 to 14 miles wide, extending to the Mississippi river. The deed conveyed both soil and jurisdiction and was free from all limitations or condi- tions. ORDINANCE 1787 REAFFIRMED. The ordinance, July I3th, 1787, containing the fund- amental rules and regulations for bona fide disposing of the western territory, required that the officers for tem- porary government should be appointed by Congress. The new constitution required that they should be nominated by the President and approved by the Senate. Accordingly, August 7, 1789, after the new constitution was adopted, Congress amended this ordinance in this 31 respect, and re-enacted it, thus completely harmonizing and unifying all that had been done regarding the public landsy by the several states, by Congress, and by the constitutional convention, making it one coherent tran- saction. DEED OF NORTH CAROLINA. After the present constitution was adopted, North Carolina, February 25, 1790, presented her deed to Con- gress comprising the lands, from which the State of Tennessee was created. The deed recited that as Con- gress had urged cession of territory to extinguish debts and estblish harmony, therefore North Carolina conveyed lands to United States. The deed provided: All lands ceded and not apportioned in bounty to soldiers, shall be considered as a common fund for the use and benefit of United States, (N. Carolina inclusive) and shall be faithfully disposed of for that purpose and for no other use or purpose what- ever. The territory so ceded shall be laid out and formed into a state or states, with all the benefits to its inhabitants, set forth in ordinance of 1787. DEED OF GEORGIA. Georgia was the last of the seven states, which ceded western territory. April 24th, 1802, Georgia ceded to United States the territory, extending westward from her present boundary to the Mississippi river, excepting the small claim of South Carolina on the north. The deed conveyed both soil and jurisdiction, conditioned that United States pay Georgia $1,250,000 to cover her ex- penses. That a land office should be opened for sale of the lands within twelve months. 32 All lands ceded shall be considered sis a common fund for the use and benefit of United States (Georgia inclusive) and shall be faithfully disposed of for that purpose and for no other use or purpose whatever. This territory shall be formed into a state and admitted to the Union, on the same condi- tions and restrictions and with the same privileges, as is provided in the ordinance of July 13th, 1787, excepting as to slavery. It should be noted that of all the states making deeds to the United States to the western territory, Connecti- cut and South Carolina alone, conveyed without limit- ations and conditions. The foregoing contains the substance of all trans- actions establishing the status of the public lands. We now turn to consider the logical deductions from the above premises. THE WORD "PROPERTY." The most critical study should be given to the use of the word "property", as found in the Constitution and quoted below; its relation to the surrounding context; and its relatioon to the entire transaction by which the United States secured control of the public lands, by which the permanent status of the public lands was fixed. Upon the interpretation of this word, Kan- sas v. Colorado, 206 U. S. 88-89, 1907, the U. S. Supremt Court rests its theory concerning the public lands and on this interpretation is based the theory of the permasent vast reserves which in California alone, exceed in area the combined territory of New Hamp- shire, Vermont, Massachusetts, Connecticut, Rhode 33 Island, New Jersey and Maryland; and which in all the states exceed the area of France or of Germany. The court, in this case, recites the clause in the nation- al constitution relating to the public lands: "The Congress shall have power to dispose of and make all needful rules and regulations, respecting the territory and 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." The court then declares: "The full scope of this paragraph has never been definitely determined. Primarily, at least it is a grant of power to the United States of control over its property. That is implied by the words 'territory and other pro- perty.' " It will be seen that the word "property'* is used in precisely the same sense in the ordinance of April 23, 1784, "No tax shall be imposed on lands *the property* of the United States;" in the ordinance of July 13th, 1787, "No tax shall be imposed on lands *the property' of the United States;" and in the national constitution "the territory and other 'property' belonging to the United States." Following the usage thus established, the public lands were at once called the lands of the United States, and continued to be so called for sixty years. POLLARDS LESSEE v. HAGON. In 1845, a case. Pollards Lessee v. Hagon, 3 How. 212, came before the United States Supreme Court, and re- sulted in a luminous decision, disclosing a comprehen- sive knowledge on the part of the court of the transac- tion by which the United States secured control of the 34 public lands and by which the perfect equality of the states was established. The court declared that the transaction between the United States and Virginia and Georgia and the Louisiana Purchase constituted a con- tract and created a trust, under which the United States secured control of the public lands to pay the public debts, by bona fide disposing of them in order that new states might be erected which should be equal in every respect to the original states; that the United States holds the public lands for temporary purposes only and in trust for the states where they lie; STATES NOT EQUAL UNTIL LANDS TRANSFERRED. that until the lands were disposed of by the United States, the new state was not on a footing of equality with the original states; TIDE LANDS. as the original states owned the tide lands, within their borders, each new state becomes owner of its tide lands as soon as it enters the Union, because the new state is on an equality with the original states in every respect whatever; CLAUSE TRANSFERRING LANDS TO UNITED STATES. as to the conditions inserted in the acts admitting new states to the Union, that these states "disclaim all right and title to the waste and unappropriated lands lying wihin said territory; and that the same shall re- main at the sole and entire disposition of the United States," this is not a contract between the parties, but is 35 binding in law. It amounts to nothing more than giving to Congress the power to make all necessary rules and regulations for disposing of the public lands. NO POWER TO CREATE UNEQUAL STATES. Neither the United States nor any state has the power to do any act or pass any law which will create inequal- ity between the states and any attempt on the part of either to do so is void and of no effect; ab enitio. 39 Fed. 730; 9 Pet. 224; 15 Pet. 449; 104 U. S. 621; 146 U. S. 387; 152 U. S. 387; 164 U. S. 240; 168 U. S. 349; 176 U. S. 83, 87; 187, U. S. 479, 483; 190 U. S. 508, 519; 198, U. S. 371; 198 Fed. 539. A LEADING CASE. The part of the decision in Pollards Lessee v. Hogan which relates to tide lands has been followed ever since. It has had frequent application and the courts have uni- formly been guided by it. But the other part of this great leading case has had no application, until the pre- sent, because Congress has been working in harmony with the basic trust and disposing of the public lands, and allowing them to pass to the states. And having no applicatio^n, it has been forgotten, together with the basic facts which constituted the title to he public lands. But now that unequal states are being created, its enun- ciation of fundamental principles must be studied anew. I'he proposition that tide lands are the property of the state, which has been so firmly established by the courts, can not be maintained in the future, if the other part of 36 Pollards Lessee v. Hagon, relating to the upland is de- nied, for both rest on the same foundation, on the per- fect equality of the states. EQUALITY OF STATES. Whether the equality of each state with the others, can not be changed by any act of the United States, or of any state, as is held by the United States Supreme Court and which seems the sounder view, or if unequal states may be created by agreement between the United States and any particular state, as might be suggested by the ordinances April 23, 1784, and July l3th, 1787, in either event the United States alone has no power to create unequal states, by executive act, by law of Con- gress, or by judicial interpretation of those laws, and all such attempts are void. 198 Fed. 539. POLLARDS LESSEE V. HAGON REAFFIRMED. On May 29, 1911, the U. S. Supreme Court, in Coyle V. Oklahoma, 221 U. S. 559, reaffirmed the per- fect equality of the states, in their relation to the nation, and discusses at length the meaning of this equality. It quotes Pollards Lessee v. Hagon in detail and reaffirms every point touched upon. This decision will be of the greatest assistance when the fundamental relation of the status of the public land to the equality of the states is in issue before the Supreme Court. COURT DECISIONS CONTRADICTORY. There are two series of decisions by the U. S. Supreme Court. One series, unbroken from the foun- dation of our nation up to the present time, maintains 37 the equality of all the newer states, with the original states. The second is a modern series, and holds that the United States owns the public lands. These two series of decisions are simply contradictory interms, one with the other. There is no middle ground."'"if'-t)ne series is true, the other series is false. If one series stands, the other series must fall. If the states are to re- main equal, the public lands must be transferred to the states where they lie. If the United States owns the pub- lic lands, and holds them permanently, the reserve states are automatically reduced to subordinate and unequal states, and our present form of state and national gov- ernment is undermined and ready to fall. INTERPRETATION OF CONSTITUTION. In view of the course of the development of the title to the public lands, the contracts entered into and the trusts undertaken by the United States, it is obvious that, in the clause of the national constitution relating to the public lands, "property" means a limited tenure only, subject to these trusts which the United States bound itself to perform. CLAIMS OF THE UNITED STATES. "Claims of the United States" in the same clause of the Constitution as the word ''property" means the right of the United States to control the public lands, so long as it bona fide disposes of them; that the lands shall be free from taxation, during this temporary holding; and that the profits of sale belong to the United States. 38 CLAIMS OF ANY PARTICULAR STATE. "Claims ... of any particular state" also has a com- plex meaning, embracing the terms of the transaction by which the public lands were acquired. It means, that the public lands, within the recognized boundaries of the original states should not be interfered with by the United States; that the claims of states, to western lands, which they had not transferred at the date of the national constitution, should be respected; that the pub- lic lands should bona fide be transferred to the jurisdic- tion, taxing power, eminent domain and sovereignty of the states where they lie, within a reasonable period; in order that a new state might be erected which will be equal to the original states in every respect whatever; and that the status of the public lands shall not be changed without the consent of the states, where they lie. NO POWER IN CONGRESS OR PRESIDENT. From the foregoing, it becomes clear that neither Congress nor the President have any powefJ