Section four of the Northwest
Ordinance further reveals the apparent determination of Congress to exercise
significant influence in the territory through its appointment of key executive
officers. Therein, the position of Secretary of the Northwest Territory was
defined, whose duty it was to,
Keep and
preserve the acts and laws passed by the legislature, and the public records of
the district, and the proceedings of the governor in his executive department,
and transmit authentic copies of such acts and proceedings, every six months,
to the Secretary of Congress.
Like the Governor, the Secretary was
to be appointed by Congress and removable at its discretion. Unlike the
Governor, the position was accompanied by a four year term in office. Taken
together, these provisions theoretically made the Secretary, if not more
powerful, a fair bit more influential than the chief executive of the territory.
Enjoying an extra year in office – making the Secretary one of the
longest-serving public officials in the United States, save some state judges –
and possessing sole responsibility for keeping the public records of the
territory and transmitting them to Congress, this innocuous-sounding position
had the potential to be either a powerful check on the authority of the
Governor or an accomplice to his schemes.
Indeed,
since the Governor could be removed at the pleasure of Congress, and since one
of the Secretary’s central responsibilities was to record “the proceedings of
the governor in his executive department” and transmit them to Congress, it
stood to reason that the latter office would theoretically function as a check
on the actions of the former. That is, unless the two occupants of the same
came to some sort of understanding whereby the Secretary agreed to communicate
only selective excerpts of the Governor’s actions to the relevant national authorities
in exchange for, say, some quantity of land secured through treaty from local
Native tribes. Then again, as the appointee of Congress, it may have behooved
holders of the office of Secretary of the Northwest Territory to fulfil their
stated responsibilities with all due exercise of loyalty and integrity. A four
year term in office, with no limits on reappointment and unaccompanied by the
prospect of popular elections, would doubtless have functioned as a powerful incentive
towards continued honesty. And it was certainly true that the office of
Secretary, as described by the Northwest Ordinance, seemed a powerful office
even in the absence of collusion with the territorial chief executive. The sole
institutional conduit through which Congress was to be kept abreast of
territorial affairs, the Secretary could wield a great deal of influence
depending on what they reported, how they structured their reports, what they
drew attention to, or what they chose to omit or elide. In light of the
authority Congress determined to exercise in the territory, the status of the
Secretary as that body’s eyes and ears would surely have left them
well-positioned to promote the agenda of the national government or shape it in
turn.
Section
four of the Northwest Ordinance also provided, in a very succinct fashion, the
framework for the territorial judiciary. “There shall also be appointed,” it
stated, “a court to consist of three judges, any two of whom to form a court,
who shall have a common law jurisdiction, and reside in the district […] and
their commissions shall continue in force during good behavior.” Assuming, for
lack of any indication to the contrary, that the appointments in question were
to be made by Congress, the judges of the sole court in the Northwest Territory
were to be the first federally-selected justices in the history of the United
States. Recalling that the national government under the Articles of
Confederation did not possess a judicial branch, and putting aside the fact
that the Constitution would very shortly put in place a national government
that did, this prosaically-phrased provision of the Northwest Ordinance accordingly
represented a highly significant innovation vis-à-vis the powers of Congress.
Whereas legislatures draft laws, and chief executives attempt to enforce them,
judges determine how they are properly interpreted in day-to-day life. By
placing this responsibility in the hands of men appointed by themselves and
removable by themselves, Congress theoretically created a space within the
contemporary United States – the Northwest Territory – wherein its chosen
officers both enforced the law of the land and determined what that enforcement
would entail. Nowhere else in 1780s America was this the case, and it stands to
reason that the trio of judges in question would feel to some degree inclined
to promote or adhere to the priorities of the authority to whom they owed their
offices. Thus, Congress would again make its will felt in the Northwest
Territory and help shape the political and legal culture(s) that would
eventually emerge there.
As
if this weren’t enough to ensure strong federal oversight in the territory,
Congress further involved itself in the domestic affairs thereof by, in section
eleven of the Northwest Ordinance, making the upper house of the legislature
federally appointed. Said legislature was to be formed once five thousand “free
male inhabitants of full age” had taken up residence in the region, with one
representative being elected for every five hundred inhabitants up to a maximum
of twenty five, and after which the ratio of voters to legislators was to be
altered as needed. This House of Representatives was joined by a Legislative
Council composed of five members, each with five year terms. The territorial
equivalent of the senates or councils employed by a number of contemporary
state governments, this body was to be chosen via a rather involved process which
seemed intended to once again prejudice the discretion of Congress over that of
the Northwest Territory’s actual residents. “The Governor,” the Ordinance
accordingly decreed,
Shall
appoint a time and place for [the representatives] to meet together; and, when
met, they shall nominate ten persons, residents of the district, and each
possessed of a freehold in five hundred acres of land, and return their names
to Congress; five of whom Congress shall appoint and commission to serve as
aforesaid [.]
Allowing that the popularly-elected
House of Representatives was to select the initial ten candidates for office –
ensuring that the five ultimately appointed would still be of their choosing –
leaving the final decision to themselves gave Congress, in addition to
influence over the executive and judicial branches of the territorial government,
significant sway over its legislative affairs.
The
opening clause of the passage cited above also bears some comment, innocuous
though it may seem. For the purpose of nominating individuals to sit in the
upper house of the territorial legislature, it directed that the governor
“shall appoint a time and place” for the assembled members of the lower house
to meet. While in some respects resembling little more than a logistic
formality, this stipulation carried with it certain implications perhaps not immediately
evident to a 21st century readership. In the late 18th
century, and particularly in the frontier west of the contemporary United
States, the location and timing of public assemblies was a topic of widespread
concern. The poor quality of roads, limited viability of waterways, and
seasonal impassibility of certain types of terrain made it necessary for
legislative bodies or political conventions to meet within specific calendar
windows and in specific locations so as to ensure as large an attendance as
possible. Debates over the time and place of certain assemblies were, as a
result, far from uncommon – often as not boiling down to one group or another
declaring that meeting at site A rather than site B made it harder for the
residents of region X to attend while giving advantage to the people of region
Y.
Indeed, one of the major
controversies at the core of the ratification of the proposed United States
Constitution, surrounding a clause in Article I, Section 4, touched upon this
very issue. “The Times, Places and Manner of holding Elections for Senators and
Representatives,” the passage in question read, “shall be prescribed in each
State by the Legislature thereof; but the Congress may at any time by Law make
or alter such Regulations, except as to the Places of chusing [sic] Senators.”
Uncomfortable with the notion of allowing an arm of the national government to
override the authority of the states, and in such a way as to provide a
potential advantage to national interests, critics of the Constitution seized
upon this provision as one piece of evidence among many of the erosion of state
prerogatives secretly desired by supporters of a stronger federal government.
While the section of the Northwest Ordinance that gave discretion to the
territorial governor to select the time and place for an upper house nominating
convention predated this clause of the United States Constitution, and applied
to a different facet of the federal/state/territorial relationship, it
nevertheless partook of the same controversial political issue.
Permitting the Governor of the
Northwest Territory to set the time and place of upper house nominations as
they saw fit – just as allowing Congress to override the states in terms of
when and where they elected federal representatives – gave the authority in
question an ideal opportunity to prejudice the outcome of the relevant process
in their favor. If said governor believed that the representatives of the far
western portion of the Northwest Territory were likely to nominate men to the
Legislative Council whose interests were at odds with either his or those of
Congress, there was seemingly nothing to stop him from setting the relevant
meeting as far to the east as he could, and at a time of year when travel over
long distances was either inhibited or made entirely impossible. Thus, while
respecting the letter of the law and the right of the territorial House of
Representatives to nominate men of their choosing to sit in the upper house,
the chief executive of the Northwest Territory could effectively “stack the
deck” of the legislative process in whatever manner he felt it to be most
expedient.
While the outcome of all of these
provisions would, of course, depend on the make-up of Congress at any given
moment – whether nationalists or state-focused federalists were in the
majority – it nonetheless seems unlikely that the delegates therein would
approve the appointment of governors, judges, or legislative councillors in the
Northwest Territory whose priorities or intentions directly clashed with their
own. This is not to say, let it be made clear, that the people of the Northwest
Territory would be beholden to Congress in every facet of their public affairs.
The General Assembly, as the Ordinance refers to the territorial legislature,
would be most responsive branch of government to the will of the district
population, as with the legislatures of the contemporary states. And the chief
executives or upper houses of the state legislatures were often appointed – Senators
in Maryland, for example, were chosen by electors who were in turn elected by
the general population, while the governors (or presidents) of New Jersey,
North Carolina, South Carolina, Georgia, and Delaware were appointed by their
respective legislatures rather than via a general ballot. The citizens of the
various states were therefore, in 1787, far from unfamiliar with the concept of
different branches of their government representing different interests within
the established political order. What they were not accustomed to, however, was
for any branch of the government intended to directly serve their needs to
represent an interest above or outside of the political order.
Congress, in more ways than one,
was exactly that kind of alien and unfamiliar interest. Being a collective body
with members from all thirteen states, whatever consensus it arrived at – the
Northwest Ordinance being a notable example – of necessity had to represent a
compromise among different the sections of the United States, their
perspectives, and their priorities. The needs of New England were different
from those of the South, which in turn were different from those of middle
states like Pennsylvania or New York; compromise was the only answer if the
federal union was to be preserved. This fact, combined with the relatively
unusual portfolio Congress possessed – foreign relations, international trade,
and interstate commerce, none of which any of the states had much experience
with – doubtless produced in members thereof an appreciation for the United
States as a singular entity that was similarly unusual among residents of the
various states. Granting, again, that not every man who served in Congress was
an ardent nationalist, the priorities embodied by, among others, the Land
Ordinance of 1784, the Land Ordinance of 1785, and the Northwest Ordinance of
1787 would seem to lend credence to this assertion.
Delegates to Congress, at least
some part of the time, thought of the federal union as an entity in itself.
They speculated as to how it would expand, considered how this expansion might
best be structured and put in place regulations to that effect. They thought
about the big picture, or tried to, and created systems and frameworks that
meshed traditions native to different states and political cultures. For an
entity like this – inclined to think in terms of what benefited all Americans
rather than the citizens of this or that state – to insert itself into the
executive, judicial, and even legislative processes of an organized, state-like
jurisdiction represented a significant break with the history of the various
states. Conditioned to perceive intrusions into their domestic affairs as
attacks on their sovereignty – by the traditions of 17th century
British rights culture and the events of the Revolution alike – late 18th
century Americans generally identified their state as their “home country” and
understood the United States as an alliance of independent nations intended to
answer the needs of military necessity. Living under the authority, indirect or
otherwise, of the United States – embodied by Congress – would accordingly have
seemed exceptionally strange, if not potentially threatening to their
liberties.
Congress was not elected by the people of the
states it represented, its intentions did not directly align with those of any
state, and it claimed sole responsibility in a number of policy areas that were
almost wholly unknown to the governments of the states. The Northwest Ordinance
thus effectively created a new species of political entity within the borders
of the United States – a territory that was not governed by any state, but by
all the states, in their collective interest, and aided by unique knowledge and
experience. It was to be an American land, governed by American public officials
and overseen by the sole American assembly. Its residents would be shaped by
this novel context, whether they knew it or not, and in time their
understanding – and that of their children, and their children’s children – of
what the United States was and what it wasn’t was bound to shift. The character
of the political communities that would emerge from such a place was, as of
1787, anyone’s guess.
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