INTRODUCTION

Two Ordinances adopted by a Continental Congress operating under the Articles of Confederation, the Land Ordinance of 1785 and the Northwest Ordinance of 1787, initiated a national policy “aimed at promoting the immigration of individuals into the area north and west of the Ohio River and providing these immigrants with some form of government.” (Squires, 1999, 10) The Land Ordinance has been widely considered as the keystone legislation for the rectangular public land surveys while the Northwest Ordinance is accepted as the basis for the evolution of state governments. Here, however, I wish to propose that legislation enacted in 1796 by the new federal government should probably be considered key to the public land surveys rather than the 1785 Ordinance.

THE FEDERAL GOVERNMENT

In the spring of 1789 a federal government, with powers described in a freshly-minted federal Constitution, began to function. On August 7, Congress enacted legislation continuing the provisions of the Northwest Ordinance (Annals of Congress, 1st Cong., 2159-2160)  As a consequence, federal jurisdiction would spread  across the United States, through the steps outlined in the Northwest Ordinance. The provisions of the Land Ordinance, however, were not continued by the new government.  Although the problem of the so-called western lands, those north and west of the River Ohio, was addressed several times, Congress did not pass an act to manage the lands, under the powers described in Article IV Section 3 of the Constitution, until 1796.  (Pattison, 1964 185-187).

The reasons for the inaction on the part of the new government regarding the western lands were not difficult to understand. The history of the Continental Congress’ attempts at disposing of them was short and unpromising.  Only a small area, the Seven Ranges, had been surveyed under the provisions of the Land Ordinance of 1785. (Figure 1) The surveys were carried out slowly and were expensive. The surveyed lands did not sell and so failed to raise the revenue the Continental Congress had envisaged.  On the other hand, the sale of land in large blocks to the Ohio Company and to John Cleves Symmes were not entirely successful either. In addition, the American Indian tribes occupying and using the western lands continued to cause concerns with the non Indian settlers, both those who had acquired title and those who were squatting, without the burden and benefits of ownership. However, in 1795, the Delaware, Wyandot, Chippewa and Ottawa tribes ceded their rights to the land at the Treaty of Greenville. “(T)he treaty guaranteed with a certainty hitherto unknown the security of settlement in territory extending as far west as a line which met the Ohio River at a point opposite the mouth of the Kentucky River.” (Pattison, 1964 190; Figure 1)

THE ACT OF 1796

On May 18, 1796 President George Washington signed into law “An Act providing for the Sale of the lands of the United States, in the territory north-west of the river Ohio”. (1 Stat. 404) This legislation would have a profound and lasting effect on the nation.  It authorized the rectangular public land surveys north and west of the Seven Ranges and west of the area sold to John Cleeve  Symmes and it re-authorized sales of the surveyed lands in the Seven Ranges.

“That the Land Act of 1796 reestablished the basic principles of the Land Ordinance of 1785 is a fact which anyone may confirm by comparing by a comparative reading of the two laws.” (Pattison, 1964 193) But the debate surrounding the legislation contained virtually no reference to the Land Ordinance of 1785 ( Pattison, 1964 193). The idea of a rectangular survey had been proposed in Congress by Representative Hugh Williamson of North Carolina as early as 1792,  but the utility and efficacy of such a survey was demonstrated, not in the Seven Ranges,  where the 1785 Ordinance had been first applied, but to New York State, where such “ideal lines” were said by Representative Havens of New York  to have caused “little embarrassment.” (Pattison, 1964 193) The committee, which wrote the Land Act , adopted the notion of rectangular lines “so as to make titles certain,” a necessary prerequisite “to get the highest price for the land” (Pattison 1964 193)  And, in fact,  the square grid was approved over the protest of members who wanted the lines to take natural boundaries into account, an idea that had been proposed by Rufus King , in 1786. (Pattison, 1964 194) Congress was not unfamiliar with the 1785 legislation, however. In the second section of the statute the survey was restricted to those lands that had not been “conveyed by letters patent or divided, in pursuance of an ordinance in congress, passed on the twentieth of May, one thousand seven hundred and eighty five.”

The Act’s provisions are important to the modern surveyor.

 (A) surveyor general shall be appointed, whose duty it shall be to engage a sufficient number of skilful surveyors as his deputies; whom he shall cause, without delay, to survey and mark the unascertained outlines of the lands lying northwest of the river Ohio, and above the mouth of the river Kentucky, in which the title of the Indian tribes have been extinguished, and to divide the same in the manner hereinafter directed; he shall have authority to frame regulations and instructions for the government of his deputies; to administer the necessary oaths, upon their appointment; and to remove them for negligence or misconduct in office.

Thus was the office of Surveyor General established although there was no mention of how any individual would be appointed to the office.  This individual was given considerable power to determine the course of the surveys by creating the regulations necessary for deputies who would actually carry out the fieldwork. Somewhat ambiguously, the Act provided for the salary of the Surveyor General but that “the President of the United States may fix the compensation of the Assistant surveyors, chain carriers and axmen.” The deputies were to function in the same way as the surveyors of the Seven Ranges who worked 1785-1788, but they clearly were not to represent states. The 1785 Ordinance had placed responsibility for paying the wages of the members of the surveying crew on the deputy, a practice that was to continue, although not mentioned in the 1796 Act.  The 1796 Act did not require the deputies be employed with contracts, a practice that was established by Rufus Putnam after he became surveyor general on October 1, 1796.

Lands … shall be divided by north and south lines, run according to the true meridian, and by others crossing them at rights angles, so as to form townships of six miles square, unless where the line of the late Indian purchase, or of tracts of land heretofore surveyed or patented, or the course of navigable rivers, may render it impractical; and then this rule shall be departed from no further than such particular circumstances may require.

Township lines would be run every 6-miles, a provision was added in the floor debate on the bill, apparently by  Representatives Havens and Van Allen from New York. Jefferson’s idea of five-mile townships was mentioned in the debate but rejected (Pattison, 1964 194).  Note that all surveyed lines were to be run “according to the true meridian” and so restored a provision of the 1785 Ordinance that had repealed for the convenience of those surveyors working in the Seven Ranges. “There is no indication, however, that Congress thought of itself as acting to correct a mistaken earlier concession to surveyors . We have here, to all appearances, independent legislation originating with a representative from western Pennsylvania who recognized, as Thomas Jefferson had done a dozen years earlier, that this method “would be of essential service”” (Pattison, 1964 197) Deviations from the normal procedure would be allowed under certain circumstances. There was still no allowances for convergence.

The corners of the township shall be marked with progressive numbers, from the beginning: each distance of a mile between the said corners shall also be distinctly marked, with marks different from those of the corners.

These provisions are puzzling. The act required that township corners be marked with progressive numbers, thus townships be given a unique designator, but provided no further information. Clearly, township corners and the section corners along the township exteriors were to be marked differently but, again, there were no provisions regarding how.

One-half of the said townships, taking them alternately, shall be subdivided into sections, containing as near as may be, six hundred and forty acres each, by running through the same, each way, parallel lines, at the end of every two miles; and by marking a corner, on each of the said lines, at the end of every mile; the sections shall be numbered respectively, beginning with the number one, in the northeast sections, and proceeding west and east alternately, through the township, with successive numbers, till the thirty-sixth be completed.

Termed, “a long step forward from the lines-on-paper of the Seven Ranges,” every other township was to be subdivided. (Pattison, 1964 196) In these townships the subdivisions, known as sections rather than the previous designations as “lots”, were to be numbered in the familiar manner. Congress was apparently unaware of the practices that had evolved under the 1785 Ordinance, in which the numbering of the sections actually corresponded to the order in which surveyors would actually create sections in the field. (Pattison, 1964 197)

And it shall be the duty of the deputy surveyors, respectively, to cause to be marked, on a tree near each corner, made as aforesaid, and within the section, the number of such section, and over it the number of the township  within which such section may be; and the said deputies shall carefully note in their respective field books, the names of the corner trees marked, and the numbers so made.

All lines shall be plainly marked upon trees, and measured with chains, containing two perches of sixteen feet and one-half each, subdivided into twenty-five equal links, and the chain shall be adjusted to a standard to be kept for that purpose.

Deputies were to mark trees that intersected the lines and to establish four witness trees to reference section corners, marking them to denote the township and section in which they lay. The information marked on the tree would also be noted in the field books. For the first time the chain was precisely described and the necessity for adjustments specified.

Every surveyor shall note in his field book, the true situation of all mines, salt licks, salt springs, and mill seats, which shall come to his knowledge; all water courses, over which the line he runs shall pass; and also the quality of the land: These field books shall be returned to the surveyor general, who shall therefrom cause a description, of the whole lands surveyed, to be made out and transmitted to the officers who may superintend the sales. He shall also cause a fair plat to be made of the townships, and fractional parts of townships, contained in the said lands, describing the subdivisions thereof, and the marks of the corners. This plat shall be recorded in books to be kept for that purpose; a copy thereof shall be kept open at the surveyor general’s office for public information; and other copies sent to the place of sale, and to the secretary of the treasury

Field books were recognized as the primary evidence on which plats were based and were to be submitted to the Surveyor General.  The Surveyor General was to make three plats, one which he would keep in his office, one that would be sent to Washington, and one that would be sent to the land district office..

CONCLUSION

The Ordinance of 1785 has, rightly, been given importance as the first piece of legislation that addressed the question of how should a nation proceed to subdivide the land surface. But the provisions of the Ordinance were very limited, in terms of the area it affected and in terms of many of the characteristics so familiar to land surveyors. When a new government was established the Ordinance had no legal effect. The public land surveys were continued only after Congress enacted a Land Act in 1796, legislation that should be accorded more attention.

BIBLIOGRAPHY

Pattison, William D. Beginnings of the American Rectangular Land Survey System, 1784 – 1800 (University of Chicago Department of Geography, Research Paper No. 50, March 1964)

Squires, Rod “A Context for the Public Land Survey” Minnesota Surveyor  (Summer, 1999) 8-13

White, C. Albert A History of the Rectangular Survey System (Washington DC, Government Printing Office, 1982)