The Northwest Ordinance, Part I: Context

In an effort to keep things from growing stale, and in the interest of staving off the point at which this series runs out of things to discuss, this week will introduce a type of document that has heretofore not been subject to investigation. Previously, every piece of literature examined here was the product, principally or totally, of a single individual. Much was made of Thomas Paine’s Common Sense, or John Adams’ Thoughts on Government, for instance, and through them the relationship between the authors of the American Founding, their intentions, and the ways they pursued them. This has been, and will continue to be, a fruitful and rewarding avenue of inquiry. Coupling 18^th and 19^th century political philosophy to distinct personalities goes some distance towards humanizing the events and concepts being discussed, and bring with it an extremely useful dimension of context and motivation. That being said, there are some documents instrumental to an understanding of how the modern United States came to be that cannot be so easily attributed to a singular personality.

In truth, this should not come as much of a revelation. The Revolutionary War and American independence both spun out of the response to inflexible British tax policy by a multiparty council of the American states – i.e. the Continental Congress. This body, existing in roughly the same form between 1774 and 1789, essentially governed the United States of American during its formative era, and oversaw the nation’s military strategy, diplomatic priorities, economic policy, and commercial activities. While it cannot be denied that it did not attend to all of these responsibilities with equal competence, Congress was one of the only tangible embodiments – along with the Continental Army – of the American union for full fifteen years, during which a war was fought, a peace was declared, and the first modern republic was born. It thereby stands to reason that, in spite of the periodic ineffectiveness of Congressional authority, a great deal of the documentary foundation of the United States was laid by this collective body.

Unlike such noteworthy texts as the Declaration of Independence or Washington’s Farewell Address, of course, documents officially authored and released by Congress don’t necessarily provide the same easy access to inquiry. Without a personal history or a clear literary personality to help ground what is being said and why, analyses of joint declarations, commerce regulations, or diplomatic instructions – the kinds of things a body like Congress spent a great deal of its time churning out – can easily become bogged down in minutiae. For a certain kind of scholar, this presents no problem at all – quite the opposite, in fact. For someone less interested in the finer details of collective decision-making in the late 18^th century Anglo-American world, however, Acts of Parliament and Acts of Congress, however historically significant, doubtless hold little, if any, appeal. That being said, there is admittedly a handful of what we’ll call “documents of state” from the era of the Revolution and the early republic whose importance to a comprehensive understanding of the American Founding can perhaps be said to outweigh their ambiguous authorship and narrow focus. The Articles of Confederation and the United States Constitution certainly fall within this category. As does the Land Ordinance of 1784, which essentially set the rules by which generations of Americans would push the boundaries of the nation further and further westward. And so does the Northwest Ordinance of 1787, which will be the topic of discussion over the next few weeks.

Essentially a replacement for, or a revision of, the aforementioned Land Ordinance, the purpose of the Northwest Ordinance was to codify the means by which the American territory west of the Appalachian Mountains – what might now be referred to as the Great Lakes region, or the Mid-West – was to be governed. The land in question had been ceded to the authority of Congress by the states that formerly claimed it (Massachusetts, Virginia, New York, and Connecticut), thanks in no small part to the advocacy of Virginia delegate Thomas Jefferson. Thus falling outside the authority of any of the state constitutions, and very shortly to become the destination of a sizeable tide of migration from the east, it fell to Congress to establish both a temporary government for the territory in question – the Northwest Territory, as it became known – as well as the rules by which the residents of said territory could organize and petition to divide themselves into a series of wholly new states. The resulting document took on a form that was effectively somewhere between a barebones state constitution and a rulebook for the expansion of the United States of America. It outlined a territorial government, set out the means by which public officials were to be elected or appointed, declared that certain fundamental rights were to be at all times observed, and demarcated the limits of federal authority.

While in some respects the Northwest Ordinance was a rather prosaic piece of federal legislation – concerned with inheritance law, and the franchise, and how much land certain public officials were entitled to – its implications for the future of the United States were anything but. The Northwest Territory, though intended in the fullness of time to be divided into as many as five states, was not a state in itself. Its government was not to be defined by a convention of its residents, but rather by Congress. Its governor was chosen by Congress, served at the pleasure of Congress, and pledged their loyalty to Congress. Likewise, while a territorial legislature was eventually intended to take up the task of making law for the residents therein, the laws which applied until that point were to be defined exclusively by Congress. As a result, the initial legal character of the Northwest Territory was bound to resemble many states in part, but no state in total. Furthermore, provisions of the Ordinance placed certain matters entirely out of the hands of the eventual residents of the territory. Land, for instance, was to belong exclusively to the Federal government until sold to private individuals, and in the interim was free from taxation.

These measures, along with various others, combined to make the Northwest Territory an American jurisdiction unlike any other then in existence. The authority of Congress held sway there like it did nowhere else in the United States. As a result, the states that were eventually carved out of it were bound to enjoy a different relationship with the federal government than did the original thirteen. They would be in every way equal under the law to their forebears – the terms of the Ordinance itself made that very clear – but unlike, say, Massachusetts, Georgia, or Rhode Island, the new states of the Northwest would be formed by people accustomed to living under federal authority. While certain of their laws, if not the majority, would be entirely theirs to define, others would be handed down by Congress. The federal government, for years to come after 1787, would be the single largest landowner, and would act as the first guarantor of the rights and liberties of territorial residents. These factors would doubtless leave a mark on the societies that took root, their understanding of the role that the national government was supposed to play, and their sense of what it meant to be American. Arriving at a moment of critical transition in the history of the United States, the Northwest Ordinance may therefore be fairly described as one of the central documents that defined America’s tumultuous adolescence in the 19^th century. By setting the terms by which new states would be settled and created, it arguably represented a break with the past and the beginning of a new era: before the Ordinance, the American states were the children of Britain, its history, and its political culture; after the Ordinance, they would be the children of Congress, its collective wisdom, and its vision for the future.

Before getting into the why and how, of course, a few things ought to be made clear. For example, it bears remembering that the federal government, as of the passage of the Northwest Ordinance in July, 1787, was embodied solely by Congress – that is to say, there was no President or national judiciary – and defined by the Articles of Confederation. Because the limitations of the Articles have been discussed at length in weeks past, it will suffice here to reiterate only a few points in brief. First and perhaps foremost, it should be understood that the Articles granted Congress almost no authority over the states that it was in a position to enforce, and that the various states accordingly governed themselves with a minimum of federal interference or oversight. As a result of this comparative weakness, men of talent and ambition who sought opportunities for public service tended to undertake careers in state politics rather than pursue appointment to Congress as one of their state’s delegates. Granted, there were exceptions – James Madison and Alexander Hamilton spring to mind – though these men were, as a rule, unusually nationalistic in their outlook and more focused then their peers on enhancing the power and dignity of the national government. Generally speaking, however, service in Congress between 1781 and 1789 was not seen as a particularly desirable posting. It certainly didn’t help matters that votes within Congress were tallied by state rather than by standing member. This meant that, rather than requiring a majority of the attending delegates to secure passage – a number which could range as high as ninety-one and as low as twenty-six – legislation needed the affirmative vote of only seven of thirteen states in order to be approved.

In spite of the sluggish pace at which it often worked, and the frequency by which the slim margin of victory led to proposed legislation being vetoed, Congress under the Articles managed to pass a handful of particularly meaningful policy measures during its relatively brief existence. The previously-mentioned Land Ordinance of 1784, brainchild of Thomas Jefferson, was one of them. Eager to secure and organize the settlement of the western territory newly acquired from Britain following the late Revolutionary War, Jefferson proposed that the lands claimed by the aforementioned states – many of which overlapped, were rooted in 17^th century colonial charters, and had been awaiting arbitration by Britain – be ceded to the national government. Thereafter, Congress would administer the land in question, survey lots and sell them at reasonable rates, give residents the mechanism to form new states, and ratify their eventual accession to the federal union. Within this framework, Jefferson held firm to five basic principles which he felt ought to underpin the continued expansion of the United States of America. The new states in question, his proposal first decreed, would forever remain a part of the federal union once they joined it, and would enjoy the same legal status as the existing states. Attendant to this equal standing, they would also be responsible for paying their share of the national debt and would be required to practice republican forms of government. Finally, and perhaps most controversially, neither slavery nor involuntary servitude were to be permitted in any of the new states after the year 1800. This final clause proved too radical for Jefferson’s fellow delegates, and they agreed to approve the measure only once it was dropped.

Despite the apparent willingness of the relevant states to cede their claims in the northwest to Congress – New York in 1782, Virginia in 1784, Massachusetts in 1785, and Connecticut in 1786 – and the willingness of Congress to approve and implement a plan for said territory’s organization, Jefferson’s Land Ordinance soon proved to be deficient in several respects. One of these was the relative inattention it paid to the needs of the temporary territorial government. Jefferson, the son of a surveyor and cartographer and something of a naturalist himself, characteristically put a great deal of thought into how the land in question was to be organized, and subdivided. In terms of government, however, he declared only that,

The settlers on any territory so purchased and offered for sale, shall either on their own petition, or on the order of Congress […] meet together, for the purpose of establishing a temporary government, to adopt the constitution and laws of any one of the original states [.]

For a territory chiefly populated by Native Americans eager to defend their ancestral homelands, and dotted with military outposts still garrisoned by British regular troops, this doubtless appeared to many observers as an alarmingly shallow means by which potential settlers could guarantee the safety and security of themselves and their neighbors. The tribal alliance known to history as the Western Confederacy – including, among others, members of the Iroquois Nations, Shawnee, Lenape, Miami, and Wyandot – would very shortly bear this out through a series of raids on American settlements beginning in the mid-1780s. Allied with the British forces still remaining in the region, and aided by the lack of any centralized response in what was nominally a region under the direct authority of Congress, the Confederacy was able to sustain their campaign of harassment – to the tune of over one thousand American lives – against only scattered resistance.

            Similarly alarming to critics of Jefferson’s proposal, though of a fundamentally different character, were the implications of the formula he recommended for dividing the territory (two hundred sixty thousand square miles in total) into individual states. By the terms he put forward, both in his initial plan and in the final draft, up to seventeen distinct sovereign entities were to be carved out of the surveyed and settled land for admission to Congress. This represented, for a United States of America still more a collection of nations than a nation in itself, an almost complete transformation of the emerging national character. Provided that all seventeen states Jefferson’s proposal made allowance for in fact joined the federal union, they would completely outnumber the original thirteen. From a nation defined in large part by its relationship to the Atlantic world, the United States would become dominated by Westerners, Western interests, and Western-oriented commerce. For states like Pennsylvania, New York, and Virginia – powerful, economically robust, and accustomed to throwing their weight around – such a fundamental realignment of the status quo embodied a significant loss of influence over the course of national affairs, such as it was. While this was an admittedly selfish motivation, particularly in light of the apparent altruism of the aforementioned cession of state territory to Congress, it was no less powerful, and managed to convince certain interests within the United States that further legislation was required to adequately dispose of the nation’s western territory.

Two subsequent pieces of Congressional legislation attempted to elaborate on Jefferson’s original proposal while still preserving the core tenets he held most dear. The Land Ordinance of 1785 – in which Jefferson also had a hand – greatly expanded upon the terms by which property in the Northwest  was to be assessed, plotted, and sold, and laid out the manner in which townships were to be organized. In some ways akin to a surveyor’s handbook, it combined elements of New England-style communal organization and Southern-style municipal autonomy into a community planning document that was distinctly American in its reasoned, blended, and flexible character. Because the Ordinance of 1785 still failed to address the political deficits of its predecessor, however, further discussions were called for. The result, two years later, was the formulation and passage of the Northwest Ordinance of 1787. Intended to provide, where earlier acts had failed, an explicit institutional framework for governing the territory in question, which established a body of law, provided for the appointing of officials, and established a clear formula for statehood and admission to the federal union, this final chapter in the western land saga represented a significant – if not altogether unprecedented – expansion of the authority of Congress over certain citizens and certain territory within the United States.

            This fact is particularly noteworthy when one considers that some of the great nationalist statesmen of the early American republic – men like Hamilton and Madison, Pennsylvania’s James Wilson, and Virginian Edmund Randolph – though serving in Congress as of the late 1780s, were not present in New York City during the drafting and passage (July 13^th, 1787) of the Northwest Ordinance. They, along with many sitting members of Congress, had instead been called away to Philadelphia to represent their respective states at a convention – meeting from May to September, 1787 – ostensibly intended to propose modifications to the Articles of Confederation. This convention of course ultimately produced the United States Constitution, a highly-centralized governing document heavily influenced by the political convictions of, among others, those men named above. The Northwest Ordinance must consequently be understood as the product of those moderate minds that either chose not to depart for Philadelphia or were not selected by their state to do so. That, in spite of not being among the nation’s premier advocates of restructuring or empowering the federal government, the delegates responsible for this third western land Ordinance still settled upon a plan which gave Congress more authority over how Americans in the demarcated territory lived their lives than the United States government had ever possessed anywhere is in truth rather remarkable. Indeed, one is tempted to conclude that as the Ordinance of 1785 represented a truly national consensus view of what community organization ought to look like in the nascent United States, so the Ordinance of 1787 may be fairly said to represent the contemporary federal government’s moderate consensus view of what the United States ought to look like politically and institutionally as it expanded further westward.