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The sovereignty and jurisdiction actually vested in these several claimants was finally ceded to the United States, and accepted by their representative, the Congress of the Confederation.' If the laws of any of the States making the cession had territorial extent within the country thus ceded, those laws would, after the change of sovereignty, still have been operative, on the principle of the continuation of law, until changed by the new possessor of sovereign legislative power. The laws of these States in respect to personal condition at the time of the transfer of their dominion have been exhibited. If the condition of negro slavery was at this time prohibited within the State of Massachusetts, the question might still have been raised whether the law attributing rights inconsistent with such slavery had been promulgated as a law for the State as now bounded, or had the character of a universal principle in its jurisprudence which must have been judicially applied wherever the State might have territorial dominion.

the report of the Committee of Congress, May 1, 1782; Journals of Cong. VII. 360-367; and a report in legislature of Maryland, with resolutions, March 9, 1841. Sess. Laws of Maryland.

The Articles of Confederation were dated July 9, 1778. Maryland acceded last, March 1, 1781. The Congress, Oct. 10, 1780, 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 sixth of September last, shall be disposed of for the common benefit of the United States and be settled and formed into distinct republican States, which shall become members of the federal Union and have the same rights of sovereignty, freedom, and independence as the other States; that each State which shall be so formed shall contain a suitable extent of territory, not less than one hundred, nor more than one hundred and fifty miles square, or as near thereto as circumstances will admit," &c. The final cession of the claims of New York was made Oct. 21, 1782; the cession by Virginia, March 1, 1784; that by Massachusetts, April 19, 1785; that by Connecticut, Sept. 14, 1786, with the reservation of a tract afterwards known as the Western Reserve, the jurisdiction over which was afterwards, under the Constitution, May 30, 1800, also ceded to Congress. For the various resolutions and acts of Congress and of the several States relating to the title of the United States to the territory not organized under a State government at the formation of the Constitution, see chapters 30 and 31 of 1 Bioren & Duane's Laws, p. 452, dc., extracted from the Introduction to the volume of land laws, compiled in virtue of a resolution of Congress of April 27, 1810, showing the geographical limits of the lands claimed by the several States under their charters, and from collections of laws of the United States relating to public lands made under a resolution of the House of Representatives, March 1, 1826, and order Feb. 19, 1827, and published by Gales & Seaton, 1828. See the Virginia Documents in 10 Hen. St. 548. For the earlier treaties with Indian tribes, see also 1 B. & D. For the political history of these cessions, see 3 Hildreth's Hist. 398, 426; 1 Curtis' Hist. of the Const. B. 1, ch. 5; Story's Comm. §§ 227, 228.

2

Ante, Vol. I. p. 114.

It may, however, be assumed that the law prevailing in the ceded territory was not determined by the legislative power of any of the ceding States, but was such as it would have been if at the Revolution it had been a separate dependency of the British crown. The common law of England would have had, under that sovereignty, personal extent in determining the relations of the white colonist, if there was no other law there prevailing with territorial extent. The country had been claimed by France as comprehended in Louisiana and Canada. French colonists were the first Europeans who established themselves within its limits. The common law of France appears to have had a personal extent there, though it was not regarded as having obtained that territorial extent which would have made it the law of the land, a law which would have continued to bind all persons until changed by the new sovereign. It does not appear that the French law was ever abrogated by special statute while the country was included within the British Empire.' The same principles which maintained negro slavery in the English colonies on the seaboard would have upheld it in the territory; but its legality there seems to have been ascribed to the law of France."

But such inquiries are rendered unnecessary by the legislative act of the people of the United States, after they had ac

1 The articles of capitulation between Lord Amherst and the Marquis de Vaudreuil, the French Governor, Sept. 8, 1760, may be found in vol. 2 of Capt. Knox's Historical Journal of the Campaigns, &c., p. 438. Art. 47. "The negroes and panis [persons held to serve for years under penal law?] of both sexes, shall remain, in their quality of slaves, in the possession of the French and Canadians to whom they belong; they shall be at liberty to keep them in their service in the colony or to sell them; and they may also continue to bring them up in the Roman religion. Granted; except those who shall have been made prisoners." Art. 38 stipulated for "the entire peaceable property and possession of the goods, noble and ignoble, movable and immovable, merchandises, furs, and other effects, even their ships," of the French inhabitants. The personality of the slaves seems specially recognized. 30 Geo. 3, c. 27 (1790), An act for encouraging new settlers in his Majesty's colonies, &c., allows immigrants from the United States, on license from the governor, to bring their "negroes," furniture, utensils, &c., free of duty. Proviso, that such negro be not sold within a year. The whites are to take the oath of allegiance. The legislature of Upper Canada, 2d sess., by act of July 9, 1793, annulled this law; confirmed the possession of the slaves then living; and limited the service of those after born to twenty-five years.

Chouteau v. Pierre, 9 Missouri 7; S. C. 3 Western Law Journal; Jarrot v. Jarrot, 2 Gilman 7, 8.

quired all political rights belonging to any of the several States known as An Ordinance for the government of the Territory of the United States northwest of the river Ohio, passed July 13, 1787, in which, after providing for the organization of a local Territorial Government as therein contemplated,' it is declared that "the following articles shall be considered articles of compact between the original States and the people and States in the said territory, and forever remain unalterable unless by common consent." The first of these provides for freedom of religious opinion. The second secures to the inhabitants, without any personal distinction, habeas corpus, and trial by jury, and guarantees a proportionate representation of the people in the legislature and judicial proceedings according to the course of the common law, &c., as in older bills of rights. The third provides for the encouragement of schools and the preservation of good faith with the Indians. The fourth contains various provisions affecting the rights of persons in respect to things; the last clause of which is, "The navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways, and forever free as well to the inhabitants of the said territory as to the citizens of the United States, and those of any other States that may be admitted into the confederacy, without any tax, import, or duty therefor." The fifth article provides for the formation out of the said territory of "not less than three nor more than five States, as soon as Virginia shall alter her act of cession and consent to the same.' The sixth article is as follows:

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'Freehold estate was the only distinctive qualification for the electors of the assembly therein spoken of. The last clause of this ordinance repealed the resolutions of the 23d of April, 1781,"relative to the subject of this ordinance." But these related to all the western territory. IX. Journals, 151. These, as reported by Mr. Jefferson, contained a prohibition of slavery after the year 1800. See the vote on striking out, ib. 139; 3 Hild. 449; 7 Dane's Abr. 443.

2

* The Virginia act of Oct. 20, 1783, authorizing the cession of the claims of the State, contained a condition as to the number of States which should be formed in the northwest territory. "and that the States so formed shall be distinct republican States and admitted members of the federal Union, having the same right of Sovereignty, freedom and independence as the other States," referring to an act of Congress of the 13th September preceding. Congress, by Resolution, July 7, 1786, recommended a modification of these terms of cession as to the number of the States to be formed, and it is here in the Ordinance anticipated. The assent of Virginia was given Dec. 30, 1788.

VOL. II-8.

"There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes, whereof the party shall have been duly convicted; provided, always, that any person escaping into the same from whom labor or service is lawfully claimed in any one of the original States, such fugitive may be lawfully reclaimed and conveyed to the person claiming his or her labor or service as aforesaid." 1 B. & D. p. 475. I. U. S. Stat. p. 51, note. 7 Dane's Abridgment, App. note a.1

So far as it was not modified by these provisions the "common law" of England, determining "personal rights," would have had force in the territory, either as a consequence of the continuation of a former local law, resting on the authority of the ceding States, or by a recognition of the personal character of the law determining those rights when attributed to immigrants from the older States, or by the operation of that international rule which has been stated in the second chapter of this work-the so-called rule of comity. The effect of these principles, in determining the rights and obligations of private persons within the Territories of the United States, will be further examined hereinafter.

1788, Sept. 6. By the governor and judges, as empow ered by the Ordinance, A law respecting crimes and punish

1 In Merry v. Chexnaider, 20 Martin's La., 699:-Held, there was nothing in the deed of cession of Virginia to deprive Congress of power to enact the 6th article. Whinny v. Whitesides, 1 Missouri, 472. Congress, under the articles of confederation, had power to prohibit the importation of slaves into the territory. Merry. Tiffin, ib. 724, and to declare free all who should be born there; and so in Jarrot & Jarrot, 2 Gilman, 1. But the ordinance is not to be construed strictly as a penal statute, and does not of itself emancipate slaves brought for temporary purpose. Lagrange v. Chouteau, 2 Missouri, 19. But, held, in Theoteste v. Chouteau, ib. 144, that slaves who were held there at the time did not become free, because the deed of cession provides that "the inhabitants shall be protected in their rights and liberties," and secures to them the rights they then had. The ordinance does not conflict with the operation of the constitutional provision for the delivery of fugitive slaves in the northwestern States. Jones v. Van Zandt, 5 Howard, 230. Vaughan v. Williams, 3 Western Law Journal, 65, S. C. 3 McLean, 530. Generally, as to the effect of the ordinance as against the sovereignty of those States, see Spooner v. McConnell, 1 McLean, 337. Ante, § 114.

2 Ante,

108.

The Ordinance provided for the organization of a local government, with a legislative Assembly, when there should be five thousand free male inhabitants of full age, and that The governor and judges, or a majority of them, shall adopt and publish in the district such laws of the original States, criminal and civil, as may be necessary and best suited to the circumstances of the district, and report

ments, ch. 6 of Terr. Laws. Sec. 19. Provides for the punishment, by imprisonment, of children or servants refusing to obey lawful commands of their parents or masters, and, by whipping, for striking a master or parent, on complaint to a justice of the peace. 1 Chase's Stat. of Ohio, p. 97. Confirmed T. L. c. 86, § 1. (Repealed O. L. c. 53, § 38.)

1795.-By the governor and judges,' A law to regulate taverns, ch. 51, of T. L., 1 Chase, 165. Sec. 9 provides a penalty for selling strong liquors to "any bond servant or slave." (Repealed T. L. c. 132, §9) Ch. 64 of T. L. 1 Chase, 190,-A law declaring what laws shall be in force. "The common law of England, and all statutes or acts of the British parliament made in aid of the common law prior to the fourth year of king James the First (and which are of a general nature and not local to that kingdom), and also the several laws in force in this territory, shall be the rule of decision, and shall be considered as of full force until repealed by legislative authority or disapproved by Congress." Ch. 74, of T. L. 1

them to Congress from time to time, which laws shall be in force until the organization of the General Assembly therein, unless disapproved by Congress." 1 Chase's L. Oh. 19:-"The governor and judges did not strictly confine themselves within the limits of their legislative authority, as prescribed by the Ordinance. When they could not find laws of the original States suited to the condition of the country they supplied the want by enactments of their own. The earliest laws from 1788 to 1795 were all thus enacted."

1 Constitution of United States declared to be ratified Sept. 13,1788. Journals of Congress. 1789, Aug. 7. An act to provide for the government of the territory northwest of the river Ohio, I. U. S. St. 50, 2 B. & D. 83, places the Government of the territory in the same relation to the Government under the Constitution that it had, under the Ordinance, been to "the United States in Congress a sembled." 1792, May 8. An act respecting the government of the territory, &c., northwest and south of the river Ohio. I. U. S. St. 285, 2 B. & D. 311. Sec. 2 empowers the governor and judges of the Northwest Territory to repeal laws made by them.

1 Chase's L. Oh. p. 25:-" Before the year 1795 no laws were, strictly speaking, adopted. Most of them were framed by the governor and judges to answer particular public ends." Ibid. p. 26:-" In 1795 the governor and judges undertook to revise the territorial laws and establish a complete system of statutory jurisprudence by adoptions from the laws of the original States, in strict conformity with the provisions of the Ordinance." * "Finally, as if with

a view to create some great reservoir from which whatever principles and powers had been omitted in the particular acts might be drawn, according to the exigency of circumstances, the governor and judges adopted a law providing that the common law of England," [&c., as in text above.] "The law thus adopted was an act of the Virginia legislature, passed before the Declaration of Independence, when Virginia was yet a British colony, and at the time of its adoption had been repealed so far as related to the English statutes." (Ed. cites 2 Call, 404. 4 Hen. & Mun. 19, 20, 21. 1 Wash. 83. 6 Mun. 148. 1 O. R. 245.)

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