XI.

THE NORTHWESTERN LAND-CLAIMS.

THE second of the two chapters devoted to the territorial questions growing out of the royal patents and charters closed with a promise to consider, in the proper place, the similar questions affecting the Old Northwest. In fact, the only reason for introducing the charters at all is their bearing on Western questions. Accordingly, this chapter will be given to a statement of the Western land-claims; the two following chapters, to their settlement. Unfortunately, the discussion of the whole subject is often colored by State feeling or by patriotism. Connecticut writers are apt to stand for the Connecticut claim, New York writers for the New York claim, while Virginians pride themselves on Virginia's being the mother of States as well as of statesmen. Again, Western men, little disposed to admit that the Northwestern States were the children of the Atlantic commonwealths, and fond of looking at the subject from a national point of view, tend either to belittle or to deny the titles of the claimant States to the Western lands.

In her constitution of 1776, Virginia ceded, released, and forever confirmed to the people of Maryland, Pennsylvania, and North and South Carolina, the territories contained within their charters, so far as they were embraced in her charter of 1609, with all the rights of property, jurisdiction, and government, and all other rights that had ever been claimed by Virginia, except the navigation of certain rivers; after which she said:

"The western and northern extent of Virginia shall, in all other respects, stand as fixed by the charter of King James I., in the year one thousand six hundred and nine, and the public treaty of peace between the Courts of Britain and France, in the year one thousand seven hundred and sixty-three; unless, by act of this Legislature, one or more governments be established westward of the Alleghany Mountains. And no purchases of lands shall be made of the Indian natives, but on behalf of the public, by authority of the General Assembly."

This declaration meant, that Virginia claimed the whole Northwest as falling within her west and northwest lines. The claim has been often denied by historians, statesmen, lawyers, and pamphleteers, on grounds that will be stated as concisely as is consistent with clearness.

Probably no bolder or stronger denial was ever made than that of Hon. Samuel F. Vinton, of counsel for the defendants in the case of Virginia vs. Peter M. Garner and others,' before the General Court of Virginia, in December, 1845. The legal question involved was that of the boundary between the States of Virginia and Ohio. In the course of his argument to the court Mr. Vinton affirmed the following historical propositions :

(1) "That Virginia, during the War of the Revolution, set up a claim to the country beyond the Ohio;" (2) "that she never had a valid title to it; (3) "that her title, not only to it, but to both sides of the Ohio, was disputed by the Con

1 Garner and the other defendants, citizens of Ohio, were seized by a party of Virginians, between low-water and high-water mark, on the north side of the Ohio River, in the act of assisting some slaves belonging to one Harwood, a Virginian, to escape from slavery. The case went up from Wood County to the General Court on a special verdict, the question being whether the defendants were, at the time of meeting and assisting the slaves, within the jurisdiction of Virginia or of Ohio. The case is reported at length in Grattan, Reports of Cases decided in the Supreme Court of Appeals and in the General Court of Virginia, III., 655. Mr. Vinton's argument was published in pamphlet, Marietta, O., 1846; and it is also found in the Second Annual Report of the Ohio State Fish Commission, 1877.

federacy, and by other States;" (4) "that they claimed all that she asserted a right to;" (5) "that, in the end, she adjusted her claim by compromise;" (6) " that she relinquished her claim beyond the Ohio with the express understanding that the acceptance of her act of cession was not to be taken as an admission by the Confederacy (who was the grantee) that Virginia had a title to the country ceded by her;" (7) "that the separate and acknowledged right of Virginia to the country on the lower, and of the Confederacy to that on the upper, bank of the Ohio, began with this compromise."

From these propositions Mr. Vinton deduced others of a legal nature that do not here concern us.

These seven propositions may all be reduced to two, for convenience. The first of these, the absolute denial of the charter-title, is supported by this chain of reasoning: (1) The Virginia grant of 1609 was made in total ignorance of the extent of the continent and of the grant sought to be conveyed; (2) the English king at that time had no right or title to the lands included within the limits beyond the Atlantic slope; (3) the charter was annulled by a writ of quo warranto issued by the Court of King's Bench in 1624, and was never renewed; (4) the English Crown's later title to the country between the Alleghanies and the Mississippi was the treaty with France in 1763; (5) the Crown plainly signified by numerous acts, as the proclamation of 1763 and the Walpole grant of 1772, that colonial Virginia did not extend beyond the mountains, and that the over-mountain lands were Crown lands; and (6) later grants than that of 1609, as those to the Carolina proprietors, to Baltimore and Penn, and to the New England colonies, show that the Crown did not regard those limits as conclusive, either on the sea-shore or in the West. Mr. Vinton rested his second cardinal proposition, that Virginia's title to the country southeast of the Ohio is a compromise with other States and with Congress, made in 1784, on the history of the cessions. The cessions will be treated in the next chapters, and need not be anticipated here. Nearly all

the judges who gave opinions in Garner's case waived the historical issue that Mr. Vinton had raised, on the ground that a Virginia court could not question the fundamental law of the State; but many important facts relating to the issue were brought out, some of the most pertinent being in regard to the creation of counties by the Legislature of Virginia: Orange, in 1734; Augusta, in 1738; Botetourt, in 1769, "bounded west by the utmost limits of Virginia." The act creating one of these counties speaks of "the people situated on the waters of the Mississippi" as living "very remote from their court-house." Other counties erected before the Revolution extended to the Ohio, and embraced Kentucky. The Dinwiddie proclamation of 1754, offering lands to volunteers to serve against the French one hundred thousand acres contiguous to the fort at the Forks of the Ohio, and one hundred thousand on or near the Ohio was recognized by the Virginia land-law of 1779. In 1752 and 1753 Virginia passed acts for encouraging persons to settle on the Mississippi (“meaning, doubtless, the waters of Ohio"); and in 1754 and 1755 acts for their protection. Grants of land on the southeastern side of the Ohio, made in the colonial period, were numerous. Marshall's "Life of Washington" is quoted as authority for the statement that the grant made to the Ohio Company in 1748 was made as a part of Virginia. The proclamation of 1763 was obviously designed for the preservation of peace with the Indians, and their enjoyment of the huntinggrounds. The Treaty of Paris, 1763, limited the colony on the west; but Virginia continued to fill up and occupy, both geographically and politically, the territory extending to the Mississippi, "until that signal act of her sovereignty over the Western territories was exercised by her in the cession she made of them in March, 1784, and which was consummated by the acceptance of it by the United States in Congress assembled upon the same day."

These facts certainly demolish Mr. Vinton's proposition that the Virginia claim was "set up" during the Revolution.

The grant made to the Duke of York in 1664 was bounded on the west by the Delaware River. But at the beginning of the Revolution, as well as before that time, New York claimed a far greater western extension, on these grounds: (1) That the grant to the Duke of York and the boundary east of the Hudson barred the New England colonies on the west; (2) that the quo warranto of 1624 and the grant to Penn limited Virginia and Pennsylvania on the west, the first by the Alleghanies, the second by the five-degree line west of the Delaware; (3) that the country west of these lines belonged to the Iroquois, in the north from times immemorial, in the south after the Iroquois conquest of 1664; (4) that after 1624, 1664, and 1681, the pre-emption of the West was vested in the Crown, not in particular colonies; (5) that the accession of the Duke of York, the proprietary of the province, to the throne, in 1685, affiliated the territory on the two sides of the Delaware north of Penn's line; and (6) that the later Iroquois treaties made the whole Western country, from the Lower Lakes to the Cumberland Mountains, and from Virginia and Pennsylvania to the Mississippi River, a part of New York. A report on the Western land-claims, made in Congress, November 3, 1781, preferred the New York claims to all those with which it conflicted, and thus justified the preference:

"1. It clearly appeared to your committee, that all the lands belonging to the Six Nations of Indians, and their tributaries, have been in due form put under the protection of the Crown of England by the said Six Nations, as appendant to the late government of New York, so far as respects jurisdiction only.

"2. That the citizens of the said colony of New York have borne the burthen both as to blood and treasure, of protecting and supporting the said Six Nations of Indians, and their tributaries, for upwards of one hundred years last past, as the dependents and allies of the said government.

"3. That the Crown of England has always considered and treated the country of the said Six Nations, and their tributa