The Northwest Ordinance, Part II: American Land

            As referred to in the first post of this series, the Northwest Ordinance represented perhaps the single largest increase of national government authority in the history of the United States up to the date of its passage in July, 1787. At a time when Congress, the lone organ of the United States government under the Articles of Confederation, lacked the power even to collect taxes from the states without their cooperation, this piece of legislation gave it an unprecedented quantity and quality of control over the administrative and legal affairs of a territory far larger than any of the thirteen states then in existence. Even granting that the government mandated by the Ordinance was intended to be a temporary one, and that an elected territorial legislature was intended to take over lawmaking duties once a large-enough population was established, the settlers making their home in the territory would experience federal authority like the residents of no other state ever had.

How this would shape, and in fact did shape, their perception of the national government and its purpose is, to some degree, a matter of speculation. Of the states that have acceded to the American federal union between the 1790s and 1950s, a sizeable number emerged from federally-organized territories. These states – including, among others, Ohio, Indiana, Illinois, Tennessee, the Dakotas, Nevada, and Utah – have not historically been all that reticent to challenge the national government in order to protect what they perceived as their rights within the federal compact. That being said, a survey of the powers granted to Congress in the Northwest Territory – the first of its kind, and a pattern for many that followed – taken into consideration with how little influence the national government otherwise enjoyed prior to the ratification of the Constitution, cannot but incline one to believe that the migrants who first staked a claim in that far-off frontier of the nascent American republic understood that they were settling in a region of the United States unlike any they had previously known.   

            Divided into fourteen sections – the last of which is further subdivided into six articles – the Northwest Ordinance makes evident as early as its third section a willingness to place key decision-making authority squarely in the collective hands of Congress. Therein, the document decrees that, “There shall be appointed from time to time by Congress, a governor, whose commission shall continue in force for the term of three years, unless sooner revoked by Congress [.]” Three specific elements of this clause are worth examining further. The first, and most obvious, is the fact that the governor of the Northwest Territory was to be appointed by Congress instead of elected by either the voters of that territory or their representatives in the territorial legislature. In light of the vast size of the region in question, and the military and executive responsibilities associated with the office of governor, this provision of the Ordinance essentially made the national government of the United States – unable, at that time, to even guarantee the terms of a commerce treaty – responsible for anointing perhaps the single most powerful public servant in the nation. While there was absolutely a practical dimension to this choice – because the territory would begin its existence with a negligible settled population, popular gubernatorial elections would not have been feasible at the outset – it undeniably embodied a new precedent in the ongoing relationship between American citizens and the union of states they nominally belonged to. Unlike in almost every state then in existence, whose citizens either chose their chief executive, or elected those who did, residents of the Northwest Territory would have virtually no input into who led the government that was intended to serve their interests.

            Also worth commenting upon is the length of the territorial governor’s term in office. At three years, it was on the high side of what was deemed acceptable under the aegis of contemporary American political thought. The first constitutions of Maryland, Massachusetts, New Jersey, North Carolina, and Georgia, by comparison, all provided for governors with one year terms only. South Carolina’s 1778 constitution – its second, after an earlier attempt in 1776 – was somewhat more generous, allowing for a two year gubernatorial term, while Pennsylvania’s was somewhat more stingy, choosing instead to vest executive authority in a twelve-member Supreme Executive Council. Indeed, of the original thirteen states, only Delaware and New York possessed constitutions that allowed their respective chief executives to remain in office for full three years between elections. That Congress chose to apply this same lengthy term to the territorial governorship described by the Northwest Ordinance, in spite of how much more common it was for analogous public officials in the states to face annual elections, would seem to be rather telling of said body’s perceptions and priorities. Granting that the Governor of the Northwest Territory would face Congressional review at the elapse of three years rather than popular election, the codification of a three year term implied a high, if not uncommon or imprudent, degree of trust on the part of Congress towards their chosen appointee. Term limits on public offices, as practiced in the states, customarily existed because trust was generally considered a poor basis on which to form a government. Men could not be trusted to serve their neighbors faithfully without sufficient oversight or disincentive towards dishonest behavior. Annual elections were thought to serve this purpose in most states, or else making the governor directly accountable to the general population. As the aforementioned territorial governor was set to function under neither of these stipulations – being triennially appointed by Congress – the result would seem to have been an office which enjoyed a great deal of freedom and limited supervision.

            Similarly striking was the determination of Congress to make its executive appointee in the Northwest Territory removable at leisure. This meant, presumably without needing to demonstrate any specific wrongdoing, that the territorial governor could be recalled and replaced by said body at any time its members chose. If sole Congressional appointment was not enough to tie the chief executive of the Northwest Territory to the will of the contemporary national government, this provision doubtless sealed that relationship in an especially firm manner. While a number of states made allowance for the impeachment and removal of public officials in their constitutions, the attendant procedures tended to be somewhat involved – i.e. accused officers of a state government could generally be recalled only once their guilt had been determined via a trial. The Governor of the Northwest Territory evidently possessed no such due process protections. Appointed by a majority vote in Congress, they could presumably be removed by the same procedure at any point during their term in office. Combined with the three-year term they theoretically enjoyed, the chief executive of this vast and isolated territory would seem designed to occupy a rather curious and uncommon position within the contemporary United States.

Separated from Congress – located in the late 1780s in New York City – by a great physical distance, and enjoying a comparatively lengthy term in office, the Governor of the Northwest Territory would presumably come to feel the oversight of the national government fairly lightly. Having to face reappointment, under normal circumstances, only once in every three years, a natural conclusion to draw would doubtless be that the members of Congress trusted the governor to attend to their duties as they saw fit. At the same time, however, the ability of Congress to remove the governor at pleasure would no doubt loom over the thoughts and actions of the officer in question. Granted, Congress – again, under normal circumstances – would likely not be monitoring them all that closely. If word reached New York that an indiscretion had been committed, however, there would seem to have been no institutional safeguards in place to prevent their immediate dismissal. In light of these provisions, the ideal candidate for the governorship of the Northwest Territory would seem to have been someone who was confident in their abilities, if not also reasonably ambitious, flexible in their capacity to create and pursue policy objective without a great deal of supervision, and generally in agreement with Congress as to the nation’s priorities in the wilderness of the western frontier. No contemporary state governor enjoyed that kind of freedom, or was in any way likewise beholden to the national government. The Governor of the Northwest Territory thus represented a novel office in the United States of the 1780s, and one whose unique suite of powers and responsibilities would doubtless have a significant impact upon the citizen-settlers who came to live under their authority.

The exact nature of these powers and responsibilities, and their implication for the residents of the Northwest Territory, also bears some consideration. Section six of the Ordinance decrees that the Governor, “For the time being, shall be commander in chief of the militia, appoint and commission all officers in the same below the rank of general officers [.]”  “All general officers,” it further adds, “shall be appointed and commissioned by Congress.” It’s worth noting that under the circumstances of life in the Northwest Territory – where settlements were not infrequently the victims of Native American raiding parties – a Congress-appointee led and staffed militia made a certain amount of sense. A territorial legislature, elected by the general population, might have been better suited under the auspices of American republican philosophy to see to the leadership and deployment of such a force, but the threat to American lives would not wait for the formation of such an institution before asserting itself. The Northwest Territory was located in a dangerous neighborhood – at the intersection of competing British, United States, and Native American land claims – and its successful administration demanded vigilance, perhaps above all else. That being said, it was far from uncommon for state governors to enjoy the status of commander-in-chief of their respective militias, or for general officers in the said militias to be subject to legislative appointment.What set this provision of the Northwest Ordinance apart from analogous sections of the various state constitutions were the elements of national government oversight it mandated and the military restrictions that Congress otherwise operated under.

The Continental Army, under the direct authority of Congress, had been effectively dispersed at the conclusion of the American Revolutionary War, owing in the main to the suspicions Americans fostered towards the concept of maintaining standing armies during peacetime. Commander-in-Chief George Washington famously resigned his commission in December, 1783, and the many state-raised regiments shortly returned home and demobilized. Congress issued orders for a major reduction in the size of the force under its own command in October, 1783, and in June, 1784 declared the army of the United States entirely disbanded. In light of certain security concerns – particularly concerning the integrity of America’s claims in the Great Lakes region – this final order was countermanded a day later, and a mutually agreeable settlement was enacted which combined all forces remaining under the command of Congress into a single regiment. This force, referred to as the First American Regiment, was limited in size to seven hundred men serving a one year enlistment, staffed by officers chosen by the contributing states, and commanded by an individual appointed by Congress. Absent further legislation, which was not necessarily forthcoming considering the sensitivity of the topic, this force could not be expanded, and it required the willing participation of the states to maintain its base strength.

   By granting the title of militia commander-in-chief to the Governor of the Northwest Territory, a position which it was responsible for filling, Congress essentially found a way around the terms of the post-Revolutionary United States military settlement. Unless or until the territorial legislature set limits on its size and composition, the territorial militia faced none of the restrictions borne by what remained of the Continental Army. And yet, like that force in its 1770s heyday, its leadership would be vetted and appointed by Congress. In none of the states would such a force have been permitted to operate. Indeed, the First American, the only national army formally permitted to exist, was stationed exclusively in the region that would eventually become the Northwest Territory, far from any states that might have felt threatened by its presence. For the scant residents of this region prior to 1787, however, there could be no escaping the reality of a national American military establishment. The Ordinance further solidified this prospect by placing its congressionally-appointed chief executive and his similarly-selected subordinates at the head of a vaguely-defined military force whose jurisdiction encompassed more territory than any three states combined. There would, as a consequence, be federal troops in the Northwest Territory, in the form of the First American Regiment or the local militia. At the same time, there would be increasing numbers of civilian settlers. The effect of this proximity, once again considering Americans’ historical antipathy towards standing armies, was bound to be significant, whatever form it eventually took.

Sections seven and eight of the Northwest Ordinance seemed to embody the same logic as section six – i.e. the territorial government needed to hit the ground running and couldn’t afford to wait for an indigenous legislature to sort out every administrative detail – in laying out some of the managerial responsibilities of the territorial governor. The first of the two provisions declared that the selfsame chief executive was authorized to, “Appoint such magistrates and other civil officers in each county or township, as he shall find necessary for the preservation of the peace and good order in the same [.]” This power was to adhere to the governor until the abovementioned territorial legislature was called into session, at which point, “The powers and duties of the magistrates and other civil officers shall be regulated and defined by the said assembly.” Once again, there was a good deal of sense in this measure. Long before there would be five thousand adult males in the territory, thus fulfilling the requirement for the creation of a legislature, there would need to be sheriffs, justices-of-the-peace, county coroners, and any number of other minor officials deemed necessary for the competent administration of an American republican-style government.

That being said, allowing the governor to appoint the majority of the civil servants in the Northwest Territory, likely for years at a time, gave that office a high degree of influence over the character of the government therein. At a time before anti-corruption legislation, which 1787 certainly was, there were virtually no institutional barriers to the governor selecting only men known to be faithful to his vision for the territory. At the same time, because the governor himself was selected by Congress, it was entirely possible, in not likely, that the chief executive of the Northwest Territory would seek to make appointments in keeping with his own sense of what gratified the national government. In either case, rather than represent the needs or desires of the communities they served, the county and township-level public officials in the first years of the territory’s existence would arguably represent the agenda of a federally-appointed administrator and his Congressional constituents. And even when this ceased to be true – even once a territorial legislature had been established, and thereafter taken up responsibility for regulating the appointment of low-level civil servants – the preference of the governor was still bound to be felt in the immediate. Whether county magistrates were elected or appointed by the legislature, the incumbent officeholders appointed by the governor were bound to enjoy a distinct advantage over uninitiated competitors – having previously performed the job in question, thanks to the largess of their benefactor the territorial chief executive, they likely stood a good chance of having their experience ratified and their position confirmed. In consequence, before or after a local legislature was formed, the Governor of the Northwest Territory was certain to exert a tremendous influence over even the low-level, day-to-day administrative affairs of the regional government.

The aforementioned eighth section of the Northwest Ordinance gave further notice of the potentially pervasive quality of the governor’s influence by granting said office the authority to create civil and criminal court divisions and provide for the establishment of counties and townships out of land secured via treaty with local Native Americans. The latter power was rather vaguely defined, and appeared unaccompanied by an additional clause shifting responsibility to the territorial legislature once it came into being. “For the execution of process,” the enabling passage read, “criminal and civil, the governor shall make proper divisions thereof [.]” A great deal could potentially be read into this provision – as to which specific processes it referred to, for instance, or what the term “proper” was supposed to mean – but even a plain-text reading would seem to have devolved a great deal of personal discretion upon the office of governor. Not being subject to legislative interference or usurpation, the chief executive of the Northwest Territory could presumably have created whatever judicial divisions he saw fit to serve either his needs or those of Congress. In the southern reaches of the territory, for instance, most likely to be settled by people from the Southern states, a governor originally from a Northern state could have attempted to establish court districts that made Southerners a minority in the eyes of the relevant justices. Potentially in fear of pro-slavery Southern culture overwhelming the character of the territory, the governor in question would have thus effectively created a legal environment wherein plaintiffs aligned with Southern political and social values would appear before the courts far less often than their Northern-affiliated neighbors. The Northwest Ordinance gave the territorial governor the power to do just that, and with no written check against its use.

The second clause of section eight, relating to the aforementioned disposal of Native territory, was less open-ended that the first, but still potentially allowed for a great deal of executive – and through the chief executive, Congressional – influence over the basic lived circumstances of the Northwest Territory’s residents. “He shall proceed from time to time,” it said of the territorial governor,

As circumstances may require, to lay out the parts of the district in which the Indian titles shall have been extinguished, into counties and townships, subject, however, to such alterations as may thereafter be made by the legislature.    

                                 

Granting that, as with other executive powers denoted by the Ordinance, this particular responsibility would eventually devolve upon the territorial legislature, it nevertheless would allow the governor to define to a very large extent what the Northwest Territory and its successor states would look like. Within the 18^th century American model of republican government, and particularly under the terms of the previously-mentioned Land Ordinance of 1785, counties and townships were extremely important base units of community organization. Being able to defined them at the outset of the territory’s existence – thus defining, among other things, which townships were formally recognized, which counties they belonged to, and where the administrative boundaries of said counties began and ended – essentially granted the governor the ability to decide where local political power would be concentrated, where communities took root, and what shape the states to be carved out of the territory would eventually take.

Granting – again, again, again – that the local legislature would eventually absorb this power as well, it strikes as somewhat arbitrary, and thus unlikely, that said body would elect to undo the administrative divisions made by the governor, particularly if a number of years had passed since their establishment. In consequence, the townships and counties delineated by the governor of during the period of his unchallenged supremacy would very likely become permanent fixtures of the Northwest Territory and the states that emerged from it. In consequence of this and the other responsibilities denoted above, the chief executive of the first nationally-administered territory in the short history of the United States could be said to wield, as of 1787, more power than any single statesman, civil servant, or military officer in the nation. Not only would the governor command a military force without limits on its size, form treaties with Native Americans, and appoint a host of territorial magistrates and administrative officials, but he would be capable of shaping, through the exercise of his codified responsibilities, the political and legal culture of the temporary jurisdiction in his charge and the permanent sovereign entities intended to be formed from within it.

Not bad, for a glorified bureaucrat.