Friday, January 27, 2017

The Northwest Ordinance, Part VII: Why the Hell Does Any of this Matter?

            It is, I think you’ll agree, a very good question.

            Well, in spite of the fact that the Northwest Ordinance was mainly intended to frame a temporary government for the nation’s first federal territory until such time as its residents could take measures to form themselves into states, it nevertheless contained a single clause which ensured that its influence would not be strictly transitory. The fifth article of the Ordinance’s statement of rights, after first outlining how many states were to be carved out of the territory – no less than three, no more than five – and outlining their general geographic boundaries, asserted that the constitutions of said states would only be considered valid if they framed explicitly republican governments, and were, “In conformity to the principles contained in these articles [.]” Read plainly, this text would seem to indicate that any prospective state formed within the confines of the Northwest Territory would have to observe the provisions outlined by the Ordinance’s statement of rights or else be disqualified from formal admission to the United States of America. None of the existing thirteen states had been forced to conform to any such restrictions to be recognized as full members of the federal union under the Articles of Confederation. Nor would any of these same states be compelled to meet a similar standard in order to accede to the government formed by the Constitution in 1788. This stipulation may thus be characterised as unique, both in terms of what had come before and what was then considered the accepted norm.

Congress, or at least the subset thereof responsible for drafting the Northwest Ordinance, had seen fit to define the base principles that the first truly American states – not former colonies – were bound to observe. Unlike the regulations that described local government, inheritance, and the electoral franchise, however, this represented a particularly consequential choice on their part. Granted, the territory’s elected lower house, intended to take over legislative duties once the region could claim a population of five thousand or greater males of “full age,” was empowered by the Ordinance to alter or abolish whichever of the laws already in place it felt no longer served the needs of its constituents. This presumably included the property laws described in section one, the election laws in section nine, the magistrates and civil servants appointed by the Governor pursuant to section seven, and general body of law that section five deemed should be adopted. In consequence, much of the legal and political culture of the territory would end up being shaped by its residents, and would change and shift as they required it to. The states that were to eventually be formed from the area allocated to the Northwest Territory would naturally enjoy these same legislative freedoms after taking their place in the federal union, “On an equal footing with the original States in all respects whatever [.]”   

The six articles of section fourteen, however, were rendered exempt from such alterations by the text of the passage cited above. Regardless of the inclinations harbored by people of the Northwest Territory, or any of its successor states, religious freedom, the writ of habeas corpus, jury trials, and due process would always be protected. Eminent domain and the sanctity of contracts would likewise enjoy absolute security, and slavery an absolute prohibition. The results were bound to be something the world had never yet seen: a set of states populated by Northerners and Southerners alike who owed their status as property owners to the federal government and were bound by law to recognize a core set of legal and philosophical principles that had been collectively defined by the gathered representatives of the whole American union. And once admitted to Congress themselves, these states would begin to exert their own influence upon the direction and tenor of American culture and government. By shaping the form and character of the nation’s first federal territory, the delegates to Congress responsible for drafting the Northwest Ordinance were therefore effectively helping to shape the future of the United States of America.

This isn’t to say that the elements of the Ordinance not protected by the text of section fourteen, article five held no long-term significance at all. By providing a framework of government and law for the residents of the territory, they established a useful model against which the political community that took root there could define itself and its expectations. Some aspects of this framework, it bears admitting, were clearly intended to be temporary admissions to the tentative status of life on the frontier of late 18th century America. Consider, for example, the fact that the Northwest Territory would not possess an elected upper house. Being populated in large part by newly-landed migrants, the pseudo-aristocratic class from which most of the states drew their legislative upper chambers simply would not exist. There was accordingly no practical need for the framers of the Northwest Ordinance to design a separate set of franchise qualifications, as the majority of the thirteen original states had done. The absence of any large urban areas or large-scale landowners with multiple tenants likewise made it possible to construct a fairly straightforward set of electoral rules that unequivocally tied landholding to political participation. All of these circumstances were bound to change once the population of the territory reached a sufficient threshold for states to be formed. By that time, prominent towns would doubtless have emerged, certain individuals would have achieved positions of social and economic distinction, and the needs of local government and the resources at its disposal would have changed.

That being said, other aspects of the government that the Northwest Ordinance defined were less contingent than they were definite. That is to say, some of the choices made by the delegates to Congress in 1787 seem based on specific preferences rather than admissions to pragmatism. The logic behind these decisions, however, often remains frustratingly unclear. There was, for instance, apparently no logistical reason why voters and candidates for public office in the territory couldn’t be defined by residence and tax status alone as they were in contemporary Pennsylvania. Including such provisions in the Ordinance would likely have resulted in a vibrant political culture taking root; one that was large, varied, and defined by more than just the ownership of a predetermined amount or valuation of land. In some ways, as with the relevant sections of Pennsylvania’s constitution, this would have more closely aligned with the rhetorical and ideological character of the recent Revolution, thereby ensuring that the philosophical values which lay at the core of American independence would also help to define the nation’s prospective westward expansion. Tying public privileges to property ownership conversely represented a more traditional way to define a political community that was rooted in the practices of the colonial era and the inherited British past.

Nevertheless, the framers of the Ordinance chose to proceed down this traditional path. Without being able to say specifically why that was – why they rejected the example of Pennsylvania and embraced the more common model seen in states like Georgia and Maryland – the significance of their choice remains quite profound. Whether they arrived at the finished document by horse-trading or compromise, the Northwest Ordinance essentially represented the United States government’s consensus version, in 1787, of an American political community. Its specific features – even those that would ultimately be subject to local revision or rejection – therefore had weighty implications. By explicitly tying real property ownership to political participation, Congress prejudiced the emergence of a particular set of social values. If landowners were the only people in the territory who could vote or hold public office, in time the laws of the land would inevitably conform to the ideal of that socio-economic class. Unlike in Pennsylvania, where every public taxpayer had a voice in public affairs, landless shopkeepers or artisans would be excluded from the political process. The possession of real estate would thus likely become a marker of status as well as a practical signifier of one’s legal standing, and the values of the culture as a whole would begin to tilt in the direction of valuing land and private ownership above all.

The fact that the prospective territory was to be located in a vast and largely-unsettled region would doubtless feed this understanding. Surrounded by land that appeared free for the taking (Native American claims notwithstanding), there would surely appear to the average resident few impediments to the universal ownership of real property, and thus to universal suffrage. Such hopes would have seemed foolish or misplaced in New York or North Carolina, where the political order seemed far more concerned with recognizing the established rights and privileges of counties and towns that had been established in the 17th century, or with ensuring that franchise restrictions didn’t prejudice farmers and manor lords over urban merchants. The existing states, by ceding their claims in the northwest to the national government, had effectively given up on expansion. Their borders were set; what mattered was protecting what they already had. The Northwest Territory represented the functional opposite – without a political or cultural history of its own, it was to be a kind of receptacle into which the United States could pour its ambition, its nervous vitality, and its hopes for the future. Men would go there because they wanted to become landowners themselves, or because the states they called home offered few paths to wealth and independence. The laws of the territory accordingly needed to be designed in such a way as to absorb and channel this veritable torrent of men and vitality.

And yet, as this discussion has hopefully made evident, the Northwest Territory was never intended to be only a neutral repository for the ambitions of its residents. In keeping with the document that summoned it into existence, both the territory itself and the states that succeeded it were obligated to observe and protect certain fundamental principles. The ownership of land was certain to become a defining characteristic of social and political life, owing to the way the place would be settled. Slavery, on the other hand, was prohibited by law from ever occupying a similarly prestigious social role. The elected representatives of the territory, and of the states it eventually gave way to, could determine to levy whatever taxes they wished on whomever they wished. That is, provided that they left all land belonging to the federal government untouched. In short, some elements of the Northwest Ordinance were almost certain to be overturned in time, other were very likely to exert sufficient influence to become part of the accepted social and political status quo, and a small handful were guaranteed to be observed no matter what came to pass.

Perhaps the best evidence of the influence wrought by the Northwest Ordinance – and by extension its authors – can be found in the inaugural constitution of the first state carved from its interior. Ohio was admitted to the federal union in 1803, after the adoption of the United States Constitution in 1788, the reaffirmation of the Northwest Ordinance by the newly-elected Congress in 1789, and the formation of an elected legislature in the Northwest Territory in 1799. A constitution convention was called in accordance with the Enabling Act of 1802 – also passed by Congress, as evidence of their continued influence over events in the territory – and met from November 1st to November 29th of that year in Cincinnati. Thirty-five men attended, representing between them ten counties and over forty-five thousand of their fellow residents. 

The document that the assembled delegates produced, while far from a carbon copy of the earlier Ordinance – that document was far too skeletal to adequately provide for the government of a fully sovereign state – nevertheless preserved many of the guarantees set out in the latter’s statement of rights. Among the elements that it added to the framework established by the territorial government were provisions for a popularly-elected governor, an elected upper house, and a judiciary chosen by a joint ballot of the legislature. Ohio’s 1802 constitution also notably dispensed with the franchise regulations outlined by the Ordinance, instead extending the vote to, “All white male inhabitants above the age of twenty-one years, having resided in the State one year next preceding the election, and who have paid or are charged with a State or county tax [.]”

Why this choice was made is unclear, like so many others discussed during this series. Perhaps a sizeable portion of the migrants into the Northwest Territory between its establishment in 1787 and the meeting of the Ohio constitutional convention in 1802 came from neighboring Pennsylvania. Having grown accustomed to a system of government in which political participation was open to just about every male citizen of sufficient age, they may have expected the constitution of the state they were about to become citizens of to follow suit. Then again, maybe the shift from a rigid property requirement to a tax and residence qualification was simply a consequence of the territory’s expanded population. Unlike in 1787, when there were less than five thousand people resident in the Northwest Territory, nearly fifty thousand called the region home in 1802. Townships and municipalities had become established, no doubt a sizeable portion of the available land had been sold, and the percentage of the overall population located in urban centres had doubtless increased as well. Continuing to maintain the electoral franchise as the exclusive province of property owners would thus have excluded a much larger percentage of the state of Ohio’s population than it had the Northwest Territory’s. Property would no doubt continue to be an important signifier of social status – the earliest residents and voters had all been purchasers of federal land – but in the meantime, it seemed, the people of what was soon to become Ohio no longer considered it an appropriate qualifier of political participation.

Where the 1802 constitution of Ohio and the Northwest Ordinance aligned much more closely was in their respective declarations of rights. The statement enshrined in the text of the Ordinance – by way of a quick refresher – declared freedom of religion, the writ of habeas corpus, trial by jury, the practice of common law, the principle of eminent domain, and the sanctity of private contracts absolutely protected, and the institution of slavery (“otherwise than in the punishment of crimes”) absolutely prohibited. The Ordinance also barred excessive fines and cruel or unusual punishment, and encouraged – rather than secured funding for – education and the building of schools. The Bill of Rights of the Constitution of Ohio, in accordance with the Ordinance’s assertion that all states formed from the territory adhere to the statement of rights contained therein or else forfeit their membership in the federal union, echoed these exact sentiments, in some cases word for word. Section three, for example, first declared, “That all men have a natural and indefeasible right to worship Almighty God according to the dictates of conscience,” before then stating that,

Religion, morality and knowledge being essentially necessary to good government and the happiness of mankind, schools and the means of instructions shall forever be encouraged by legislative provision not inconsistent with the rights of conscience.

Absent the phrase “by legislative provision not inconsistent with the rights of conscience,” this was precisely the text which introduced the third article of the Northwest Ordinance’s statement of rights. Its inclusion within Ohio’s first constitution, along with a blanket protection of freedom of conscience, accordingly set Ohio alongside the other member-states of the federal union whose governments declared religion beyond their power to affect and education outside their conception of public affairs. This was not a choice that the people of Ohio had made form themselves – though they might have, if given the chance – but one that had been made for them by the delegates to a national government which, in 1802, no longer existed.

            Section two of the Ohio Bill of Rights likewise gives evidence of this translation of social and philosophical values across time and space from 1787 New York to 1802 Cincinnati. “There shall be neither slavery nor involuntary servitude in this State,” it read, “otherwise than for the punishment of crimes, whereof the party shall have been duly convicted [.]” This too was an almost exact citation from the text of the Northwest Ordinance – specifically, the first clause of section fourteen, article six. Its inclusion within the finished text of the Buckeye State’s first constitution is of particular significance given the contemporary cultural makeup of the same. While the northern regions of what would become Ohio had been settled in the 1790s mainly by migrants from New England and New York, a four million acre area of the southern portion had been set aside during the 1780s for the government of Virginia as a source of land grants for the retired Revolutionary War veterans to whom it still owed back pay. This region was consequently populated mainly by migrant Virginians by the time the state’s first constitution was being drafted in 1802. While these settlers would have been required to sell or free their slaves before taking up residence in the territory – in accordance with the terms of the Northwest Ordinance – many of them doubtless remained sympathetic to the perpetuation of slavery advocated by their brethren in the Southern states.

            In fact, ample evidence attests to the pro-slavery sympathies of a significant portion of the population of the Northwest Territory during its existence between 1787 and 1803. Though section fourteen, article six of the Ordinance ostensibly prohibited slavery, landowners who had been resident in the Great Lakes region prior to the territory’s creation in 1787 managed to successfully interpret this clause as exempting slaves that had been brought into the territory or born in the territory in years prior. Many of the later migrants from Southern states – some who owned slaves already and preferred not to be rid of them, others who didn’t own slaves but wished to do so – subsequently attempted to expand on this loophole by either pressing for more exemptions or petitioning to have the Ordinance’s aforementioned anti-slavery clause entirely repealed. Serious, organized, well-argued attempts were made at the latter in 1788 and 1796 by groups of territory residents who believed that keeping slaves was instrumental to the economic well-being of the communities that had taken root there. Though both of these efforts ultimately failed to convince Congress to amend the Ordinance, pro-slavery governors and lawmakers meanwhile managed to implement a number of statutes that created long-term forms of indenture in place of slavery. By the time Ohio’s first constitution was drafted in 1802, therefore, slavery was far from a settled issue in the Northwest Territory, and a number of the new state’s prospective residents were very likely in favor of dispensing with the Ordinance’s prohibition on slaveholding.

            Nevertheless, a plain-text reading of the Northwest Ordinance made this impossible. Section fourteen, article five stated quite plainly that any state formed from the territory would be admitted, “Into the Congress of the United States, on an equal footing with the original States in all respects whatever […] Provided, the constitution and government so to be formed, shall be republican, and in conformity to the principles contained in these articles [.]” There was, it seemed, no getting around the fact that Ohio’s first constitution was required to conform to the Northwest Ordinance’s statement of rights if the state was to be admitted to the federal union. That the 1802 constitution did indeed prohibit slavery in spite of the fact that a vocal segment of the state’s population favored embracing the institution would seem to speak well of this conclusion. As would the inclusion of certain other provisions within the Ohio Bill of Rights that were uncommon among the constitutions of the existing states but spelled out explicitly by the text of the Northwest Ordinance.

Take the clause within section fourteen, article two that protected the practice of eminent domain, for example. As mentioned previously, Massachusetts was the only American state in 1787 whose constitution contained an explicit protection of the concept of eminent domain. Accordingly, the inclusion of a statement within the Northwest Ordinance that, “Full compensation shall be made” in the event that it became necessary, “To take any person’s property, or to demand his particular services,” represented something of an exception to what was then a general rule. The inclusion of a similar clause within the Fifth Amendment to the United States Constitution – ratified and adopted in 1791 – helped alter this state of affairs by lending eminent domain the recognition and sanction of the federal government. By the time Ohio was admitted to the federal union in 1803 as the fifteenth state, a further two had adopted analogous provisions into their own constitutions. These were, in fact, the two states that immediately preceded Ohio in their petitions for statehood, Kentucky (1792) and Tennessee (1796). In consequence, it might seem fair to conclude that eminent domain gained widespread acceptance as an object of constitutional protection in the United States because, after 1791, it was fully enshrined within the federal constitution. Kentucky, Tennessee, and Ohio were accordingly following the lead of the federal government when they each determined to protect the practice through their respective governing charters. 

Of course, nothing is ever that simple within the realm of American history. Tennessee, as discussed many moons ago, came to be a state through the cession of a large swath of land by North Carolina to the United States government in 1790. Thereafter named the Southwest Territory, this region was directed by Congress to be governed in accordance with the terms of the Northwest Ordinance of 1787. While the provisions of the relevant federal legislation made it clear that the prohibition of slavery contained within section fourteen, article six of the same did not apply to this new territory, all other aspects of the Ordinance were evidently left intact. It accordingly follows that eminent domain was protected in the Southwest Territory in the same way that it was in the Northwest Territory, and that Tennessee was required to adopt the same statement of rights as Ohio into its inaugural constitution in order to be admitted to the federal union. It also bears remembering that the Northwest Ordinance preceded the Fifth Amendment by several years, and in fact may have influenced the substance of the latter. To draw a line between the text of the United States Bill of Rights (1791) and the constitutions of Kentucky (1792), Tennessee (1796), and Ohio (1803) thus discounts or ignores the influence of other important pieces of legal and philosophical precedent.

Certainly it was possible, if not likely, that the men who framed the constitutions of the first new states to be admitted to the American union following the Revolution were inspired to follow the example of their nation’s recently-ratified governing charter. Then again, many of these men were already living within legal jurisdictions whose founding documents protected certain specific legal principles that most other states did not. The United States Constitution surely made for a tremendous exemplar, but the Northwest Ordinance had already bound the populations to which it applied to recognize freedom of conscience, and the writ of habeas corpus, and the practice of eminent domain for years before the Fifth Amendment was proposed, adopted, and ratified. In consequence, even if the framers of the Tennessee and Ohio constitutions hadn’t been bound by the terms of the Northwest Ordinance to recognize and protect certain specific legal principles and practices – and by all accounts they were – they had doubtless already been influenced more in their daily lives by that document than by the United States Constitution and its accompanying Bill of Rights. Whether by statue or precedent, it seemed, the Ordinance served to define the contours of life in the American Northwest – and, it seemed, the Southwest – in accordance with priorities set by the aggregate of the United States’ knowledge, intentions, and expertise, rather than that of any one community. While Ohio is currently governed in accordance with a heavily-amended version of its second constitution – ratified in 1851 – its existence as a distinct political entity, and the role it has since played in the history of the United States, remain the undeniable consequences of the passage and implementation of the Northwest Ordinance.   

The product of this collaboration – of some of the best minds that the various states had to offer – was an entirely novel jurisdiction within the nascent American republic. Emphatically not a state, it resembled many of them in some part or other. Possessing the rudiments of self-government, it was to be directed in the main by Congress and its appointed coterie of bureaucrats and administrators. Though it was the creation of the only authority in contemporary America inclined to consider the interests of the union of states as a whole, its main tenets seemed to predispose the emergence of a somewhat parochial political culture of independently-minded expansionist landowners. It was, in all, a chimerical thing – a hodgepodge of what had been and what would be; of suggestion, and fiat, and precedent, and innovation. In this sense, the Northwest Territory was to be more “American” than any part of the contemporary United States had ever been. Whether or not the delegates responsible for its creation desired this outcome is a matter of conjecture. For the most part, they seemed more concerned with confronting the practical consequences of westward migration and the accompanying need to preserve and promote a stable political order than singlehandedly rearticulating the nation’s cultural and political character. Nonetheless, the choices that the framers of the Northwest Ordinance made in 1787 set a series of events in motion that forever changed the history and character of the United States of America. For that reason – if not also because it makes for a very interesting exercise – their work and it legacy are worth thinking about now and then.

            That’s my two cents, at any rate.

            Check it out.

Friday, January 20, 2017

The Northwest Ordinance, Part VI: American Ideals, contd.

            With these various disagreements in mind – is a declaration of rights necessary? If so, what should it contain? Are there some matters better left to the legislative process? – the specific contours of the statement of rights included within the Northwest Ordinance are perhaps not so difficult to understand. No doubt acutely conscious of the differences of opinion that they each nurtured, and yet unable by the same token to do away with the thing entirely, the architects of the Northwest Territory chose to include in the relevant piece of legislation a declaration of rights that was both broad (with a few exceptions) and quite brief.

            Its first article stated that no law-abiding individual was to be ill-treated or abused, “On account of his mode of worship or religious sentiments [.]” Whether or not they included a declaration of rights, almost every state constitution contained a clause or article touching upon this same basic principle. Article thirty-eight of New York’s constitution, for instance, decreed, “That the free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever hereafter be allowed, within this State, to all mankind [.]” Virginia’s Declaration of Rights likewise declared that, “All men are equally entitled to the free exercise of religion, according to the dictates of conscience [,]” and Maryland’s constitution stated in its thirty-third article that, “no person ought by any law to be molested in his person or estate on account of his religious persuasion or profession, or for his religious practice [.]” The proliferation of this sentiment was doubtless owed in large part to the influence of philosophical Enlightenment – the guiding lights of which generally agreed that religious tolerance was instrumental to preserving and promoting peace and stability – as well as to the lack of any one dominant sect or church in the contemporary United States. Bearing these facts in mind, and recalling that freedom of conscience constituted the first guarantee listed in the Northwest Ordinance’s statement of rights, it seems a fair conclusion that the assembled delegates agreed most strongly on the basic premise that all people were entitled to practice whatever faith accorded most strongly with their convictions.

            The second article therein also name-checked a number of ideals very common among the governing charters of the various states. These included protections of, “The writ of habeas corpus, and of the trial by jury; of a proportionate representation of the people in the legislature; and of judicial proceedings according to the course of the common law.” Not only had these principles been upheld and ratified by many of the states as being of paramount significance, but a number of them echoed the rights that had been explicitly cited a century earlier by the English Parliament’s Bill of Rights of 1689. The Northwest Ordinance’s assertion that, “All fines shall be moderate; and no cruel or unusual punishment shall be inflicted [,]” was a prime example of this transference of legal norms via the mechanism of tradition and culture. The supporters of the Glorious Revolution (1688), fearful of the emergence of an absolute monarchy in England, determined to codify what they regarded as the basic tenets of English parliamentary government and the individual and community rights that undergirded it. These fundamental rights – parliamentary sovereignty, free elections, the rights to bear arms, and so forth – thereafter became the basis of Anglo-American colonial self-government, and from there were incorporated into a number of the first states constitutions. The English Bill of Rights’ declaration, “That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted [,] was thus closely echoed by the twenty-sixth article of the Massachusetts constitution’s Declaration of Rights, and the twenty-ninth section of the Pennsylvania constitution, and cited exactly as the ninth section of Virginia’s 1776 Declaration of Rights. Given that it possessed this manner of pedigree, it made a great deal of sense for this same sentiment to be expressed within the text of the Northwest Ordinance – to be passed from thence to the next generation of sovereign American states.

            Article two of the Ordinance’s declaration of rights also made reference to the concept of eminent domain, another legal principle rooted in the aforementioned English common law tradition which formed – and in many ways continues to form – the basis of American legal culture. A product of the interplay of Crown prerogatives and popular sovereignty – i.e. attempts by certain elements of English society to restrain the power of the monarchy by asserting the rights of the people – eminent domain essentially allows private property to be appropriated – or expropriated, or acquired, depending on the jurisdiction – without consent, so long as the seizure facilitates to a demonstrably public purpose and the dispossessed owner is fairly compensated. Comparatively few of the existing state constitutions contained a clause ratifying the practice of eminent domain, article ten of the Massachusetts Declaration of Rights being a notable exception. It may have been the case that the majority of the states, their citizens still flushed by the republican idealism of the Revolution, believed that plainly acquiescing to the public seizure of private property was unbecoming of a people who had so recently endeavored to throw of the shackles of what they considered to be a tyrannical central authority. Then again, the fact that the Fifth Amendment of the United States Constitution – besides prohibiting double jeopardy and freeing people from having to bear witness against themselves – made explicit note of the practice of eminent domain would seem to indicate that there existed a widespread consensus as to its validity in late 18th century America. In either case, the practice was one which most Americans in the 1780s would have been familiar with, and which was entirely in keeping with their shared English legal and political heritage.
            
            The final clause of the aforementioned second article of the Northwest Ordinance’s declaration of rights was, by comparison, very likely rooted in more recent events. “No law ought ever to be made,” it stated, “or have force in the said territory, that shall, in any manner whatever, interfere with or affect private contracts or engagements […] previously formed.” There existed virtually no equivalent to this passage in any of the various state constitutions, and in all likelihood it was intended as a counter to the behavior of certain state governments amidst the debt crisis that had emerged in the United States following the end of the Revolutionary War. The material cost of waging armed conflict against one of the most powerful empires then in existence had been understandably severe, and the resulting drain on hard currency (gold and silver) placed state governments, private merchants, and independent farmers alike in the unenviable position of attempting to service debts that they otherwise had no viable means of repaying. Whatever remained of America’s hard currency went overseas to pay off debts owed to suppliers or lenders contracted with during the war, leaving obligations owed locally to be paid off either in paper currency – which proved incapable of holding its value over the long term – or in confiscated property. The latter practice understandably resulted in widespread discontent, which in turn prompted popular calls for debt cancellation.

            Contemporary state governments – many of which possessed strong legislatures and weak executives – not infrequently gave in to these cries for relief by passing laws which abrogated existing contracts between debtors and lenders. Critics of this practice – James Madison and Alexander Hamilton perhaps most prominent among them – asserted that it only really served the short-term needs of the indebted and their elected representatives. While the former were able to banish the looming threat of foreclosure and the latter were able to maintain their popularity and secure their own re-election, those owed money had their property rights effectively nullified. This, it was felt, spoke poorly of the ability or willingness of the states in question to protect the sovereignty of their citizens – be they in the majority or the minority. If a state government proved amendable to dismissing one type of contract, what could possibly constrain them from pursuing this same course of action to its logical conclusion? Charters were a form of contract; as were land deeds, and bills of sale. If cancelling debts secured the re-election of an embattled government, why not cancel the private wealth of whichever class or element of society the disgruntled majority deemed to be their enemy? In short, where did it end?

            There were no obvious answers to these questions, particularly given the inability of Congress under the Articles of Confederation to restrain, discipline, or otherwise interfere with the various states governments. In consequence, it may have seemed prudent to a number of the delegates responsible for drafting the Northwest Ordinance to insert a strong legal protection of contracts and the rights of contract holders. Granted, not all of them would likely have agreed with what they doubtless perceived as an intrusion into the prerogatives of the people’s elected representatives. Delegates to Congress were selected by the relevant state legislature, and since it was the state legislatures that were responsible for these debt-cancellation measures, some of the architects of the Northwest Territory surely felt bound to uphold the right of a duly-elected government to take such lawful measures as its constituents demanded. That being said, enough of them must have seen the value in preventing the spread of this particular expression of runaway populism into the territory and its successor states for the above-quoted clause to pass muster.

            Article three of the Ordinance’s declaration of rights continued the divergence from inheritance to innovation begun in article two – from what the American states had been to what it was felt they should be – by further pushing the customary limits of state and federal authority. “Religion, morality, and knowledge,” it stated, “being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.” Obviously, this assertion of the importance of education fell short of the state funding authorized by either the Massachusetts or Georgia constitutions. Recalling that this pair of states was alone in their dedication to public education – religious or otherwise – and that schooling was not yet widely accepted in the contemporary United States as a public responsibility, this should not come as much of a surprise. Nevertheless, the fact that education and its importance to the promotion of good government are mentioned at all speaks to the changing perception of the role of government in America that the Northwest Ordinance arguably represents. While the delegates to Congress responsible for drafting it may not have agreed that providing public funding for education was as important as protecting the sanctity of contracts – neither of which the majority of existing state governments believed fell within their remit – they were at least willing to render it the opinion of the national government, and a codified element within the Northwest Territory’s governing document, that education was a vital part of maintaining the type of free and trustworthy government upon which the United States of America was founded.

            The aforementioned third article also contained a passage which, at first blush, appeared to reassert an existing principle enshrined within the Articles of Confederation while in fact subtly enhancing the authority of the national government. The clause in question stated that, “The utmost good faith shall always be observed towards the Indians […] and, in their property, rights, and liberty, they shall never be invaded or disturbed, unless in just and lawful wars authorized by Congress.” Because, again, the Articles had already staked out Native American relations as the particular responsibility of Congress, and because, it bears remembering, all thirteen states had ratified the Articles and thus validated the federal government they called into existence, this section of the Northwest Ordinance would seem to be entirely in keeping with the status quo.
Consider, however, the exact wording of the relevant passage of the Articles of Confederation. “The United States in Congress assembled,” it read,

Shall also have the sole and exclusive right and power of […] regulating the trade and managing all affairs with the Indians, not members of any of the States, provided that the legislative right of any State within its own limits be not infringed or violated [.]

Taken at face value, the power to engage with the Native residents of America conferred by the Articles was quite strongly limited by the very existence of the states. Native tribes whose land was deemed to fall under the authority of a particular state thereby fell outside the authority of Congress. Furthermore, the federal government was limited from taking any actions vis-à-vis the native inhabitants of the continent that demonstrably violated the “legislative right of any State within its own limits [.]” This would seem to have allowed Congress a fairly narrow window of action – unless the Native peoples it was inclined to treat with lived outside the boundaries of any of the states, and unless its actions could be shown to do no harm to existing state laws as they operated normally, the national government was ostensibly powerless. Presumably, for those Native Americans considered “members of any of the States [,]” the relevant state government would possess sole authority to conduct trade, diplomacy, or war with them.

            Without appearing to do anything so dramatic, the text of the Northwest Ordinance cited above effectively shifted responsibility for Native American affairs away from local government and into the hands Congress. Or at least it did so within the boundaries of the Northwest Territory. This was accomplished simply by failing to mention the territorial government in the Ordinance’s statement about the sanctity of Native Americans’ “property, rights, and liberty” and by explicitly naming Congress as the sole authority capable of abrogating the same. In consequence, unlike in any other jurisdiction within the contemporary United States, the national government possessed sole and unmitigated authority to make treaties with, trade with, or conduct war against the native peoples living within the territory proper. As no mention was made of the territorial legislature, said body would presumably have been powerless to alter this arrangement. And because Congress would continue to exercise the greater share of authority over the leadership and disposition of the territorial militia, residents would possess no legitimate means of circumventing the authority of the national government by applying military force as they saw fit. Congress would determine which tribes were engaged with, and in what way, and to what end. It would authorize the signing of treaties and the purchase of land, the establishment of trade agreements, and the conduct of armed conflicts. Nowhere else in the United States of the late 1780s was this unequivocally the case, and the consequences for the future development of the Northwest Territory were substantial.

Understanding why this was the case requires a little context. The thirteen existing states, it bears remembering, had each been settled and expanded via the interaction of local and international interests and priorities. Residents of Pennsylvania, say, or Virginia, or North Carolina had pressed the boundaries of their respective colonies ever westward for at least a century between their foundation in the 17th century and the end of British rule in the late 18th century. In search of the cheap and plentiful land that North America was purported to be full of, these pioneers had been forced to contend with both the competing claims of rival colonists and the hostility of existing native communities. Britain, in its role as overseer and beneficiary of colonial development, meanwhile attempted to mediate between the territorial demands of rival colonies while also preserving some semblance of a mutually beneficial relationship between itself and its traditional indigenous allies. The result was a relatively stable status quo – no two colonies ever took up arms over disputed territory – that occasionally flared up into open war between land-hungry colonists and increasingly threatened native tribes. The Royal Proclamation of 1763, issued by George III in October of that year, attempted to put an end to this cycle of expansion and violence by prohibiting further colonial settlement beyond a line extending in a rough diagonal from Maine to Georgia, at a distance of roughly three hundred miles inland from the Atlantic coast. Reaction to this effort by the Crown to rigidly curtail the speed and extent of colonial growth was met with widespread hostility among residents of British America, and in no small part contributed to the resentment and alienation that made the American Revolution possible.

Late 18th century Americans, in short, did not like being constrained in their ability to seek out, capture, or purchase land for their personal use and development. The promise of becoming a landowner had been a major draw for migrants during centuries of British rule, and the founding mythology of the nascent American culture cherished the image of the rough-and-ready settler whose success was due to their hard work, sacrifice, and bravery. Engaging with the indigenous peoples of the regions Americans claimed as their home – whether this engagement entailed commerce or conquest – very much formed a part of this idealized personal understanding, and helped to condition what the citizens of the newly-declared United States expected of their government in the post-independence era. The passages within the Articles of Confederation concerned with the relationship between Congress and what the document referred to as “Indians” seemed to acknowledge these expectations – generally, that the regulation of Native Americans affairs would be left to individual states and communities – by reserving federal rights to the same only in cases where no state could claim legitimate jurisdiction. Virginia, therefore, or the Carolinas, or Georgia could deal with the indigenous peoples residing within their borders according to whatever priorities and whatever timetable they deemed appropriate.      
         
            This was not to be the case within the Northwest Territory. By the terms of its founding document, cited above, residents therein would be incapable of either concluding agreements with or pursuing hostilities against native communities or tribes resident in the region. Nor would they be capable of electing representatives with the power to authorize the same. Congress would, as aforementioned, exercise sole authority in this area, subject to no check or limitation but its own discretion and the resistance offered by the native peoples themselves. Not only did this make the residents of the territory beholden to the timetable and agenda of the national government as concerned the relationship between the United States and its indigenous neighbors, but it at least partially allowed Congress to dictate the speed at which the population of the Northwest Territory expanded. Neither the residents therein nor their elected legislature would be permitted to purchase land from native peoples or take it by force. Rather, Congress would authorize the use of military force, the signing of treaties, and the acquisition of territory. This land would in turn be sold by the national government, at a set price and to whomever desired it. Conflicting claims would accordingly be avoided, unnecessary bloodshed kept to a minimum, and a chaotic and violent land rush prevented. While this arrangement did not quite represent a repeat of the abovementioned Royal Proclamation, it nevertheless also sought to place a hard limit on the ability of the American population to expand at whatever pace and by whatever means it collectively desired. 

            The second major clause within article four of the Northwest Ordinance’s statement of rights appears to confirm the intention of Congress to closely regulate the settlement of the relevant territory by granting the national government sole authority over land sales. “The legislatures of those districts or new States,” it accordingly decreed, “shall never interfere with the primary disposal of the soil by the United States in Congress assembled, nor with any regulations Congress may find necessary for securing the title in such soil to the bona fide purchasers.” As stated above, Congress intended to direct the peopling of the Northwest Territory by controlling access to land therein. In order to do so, it naturally would have required that local authorities be incapable of inhibiting or obstructing its ability to either sell land in accordance with the terms it had set, or of preventing the rightful purchasers from taking full possession of their property. Article four’s further admonition that, “No tax shall be imposed on lands the property of the United States” further speaks to the role Congress envisioned for itself in the territory as sole broker of land sales. Had the territorial legislature been able to levy taxes upon federal property, Congress might have felt pressured to dispose of the same. Absent this threat, however, the national government could acquire and sell off land at whatever pace it deemed necessary. Regardless of what the people living in the Northwest Territory or their elected representatives believed to be in their shared best interests – in terms of land acquisition and sale, anyway – the United States in Congress Assembled was evidently determined to afford its own vision top priority.

            Never was this more obvious than in the first provision laid out by the sixth article of the Ordinance’s declaration of rights. “There shall be neither slavery nor involuntary servitude” in the Northwest Territory, it plainly stated. This condition on the laws to be erected in the aforesaid federal territory was remarkable for a number of reasons, not the least of which being that slavery had been outlawed in only a handful of states as of 1787. Indeed, only Massachusetts had freed the slaves within its border totally and unconditionally, via a state Supreme Court decision in 1780. Pennsylvania (1780), New Hampshire (1783), Connecticut (1784), and Rhode Island (1784) had meanwhile passed legislation that set in motion the gradual emancipation of slaves often over a period of years or decades. The remaining eight states – the majority, it bears pointing out – still recognized slavery, and most of them would continue to do so for the greater part of the century that followed. The delegates to Congress responsible for drafting the Northwest Ordinance thus came mostly from legal jurisdictions in which the enslavement of human beings remained a viable, if not flourishing, practice. The fact that they saw their way clear to outlawing slavery in the territory – by the equivalent of constitutional fiat, no less – is accordingly rather remarkable.

Whether this was the result of intense negotiation, the trading of favors and promises, or an act of spontaneous compassion may never be entirely clear. Then again, slavery did not really emerge as national political issue until there was such a thing as a national political culture. Prior to the adoption of the United States Constitution, and the creation of a federal government capable of effectively exerting its will upon the states, communities that relied upon slavery for their economic well-being did not seem to feel that the peculiar institution upon which they depended was under any serious threat. Accordingly, the aforementioned delegates to Congress may not have believed, in 1787, that there was any reason to see the prohibition of slavery in the nation’s far western territory as auguring poorly for their own situation. This may also explain why the text of the Ordinance explicitly used the word “slavery” in place of a less severe-sounding euphemism. The Constitution, which was drafted almost simultaneously with the Ordinance but in a dramatically different political context, made no mention of slavery beyond a pair of oblique references in Article I (the infamous but poorly understood 3/5 Clause in Section 2, and the twenty-five year ban on anti-slave trade legislation in Section 9). Possibly this represented an attempt by pro-slavery delegates to the Philadelphia Convention to prevent future governments formed under the Constitution from locating explicit power over the practice of slavery within the plain text of the same. By couching mention of the institution in particularly vague terminology, and otherwise failing to reference it, it was perhaps hoped that the fate of slavery in America would in future be left to the discretion of the individual states.

By the same token, neither the thirteen existing state constitutions nor the Articles of Confederation made overt reference to slavery either. The potential reasons for this are, as before, not always explicit. It’s possible that the delegates to the various state constitutional conventions, having been awakened ideologically by the rhetoric of the ongoing Revolution – all that talk of liberty, and justice, and the rights of man – felt embarrassed or ashamed of writing an explicit protection of human bondage into a document that would theoretically frame their local government for centuries to come. Perhaps it was better, they thought, to leave slavery for legislators to sort out – let the state constitution rather be a shining beacon of optimism and nobility, unsullied by any mention of a regrettably necessary economic practice. When one also recalls that slavery in America very possibly could have faded away were it not for the emergence of cotton as a profitable plantation crop at the turn of the 19th century, this explanation appears yet more convincing. The Northern states followed this exact path, after all. Rather than enshrine slavery – which all of them practiced at the moment of independence in July, 1776 – within the governing document of their respective states, they allowed the institution to fall under the remit of their individual legislatures. In the years that followed, one government after another took advantage of the opportunity this choice presented, and by 1827 slavery had been totally banished from every state north of Maryland.         
        
          Within this context, explicitly prohibiting slavery in the Northwest Territory may not have seemed particularly audacious. Indeed, it may well have suited the needs and sensibilities of all those responsible for drafting the selfsame Ordinance. In 1787, no one in the United States was yet interested in apologizing for or justifying slavery. Many of the men who considered themselves harsh critics of the institution actively practised it as private citizens, with all due consciousness to the appearance of hypocrisy. Ensuring that slavery wasn’t transported to the frontier West, and from there permitted to take root in the states that would eventually coalesce there, may thus have been embraced as a kind of ethical salve. Just as the failure to mention slavery in any of the state constitutions had tacitly spoke to a hope for its eventual abolition, so forbidding the practice in the Northwest Territory implied its eventual extinction to be the collective hope of the Revolutionary Generation. The fact that none of the existing states would be affected by this choice – that the economies of Virginia, and the Carolinas, and Georgia remained secure and unthreatened – doubtless made it more attractive still. Though this in some ways made it a half-measure, there was reason still to feel some amount of pride. Though the authors of the Northwest Ordinance did not endeavor to reshape the United States of America as it then existed, they did effectively take it upon themselves to mould the nation as it was yet to become. That they believed this nation ought to take as one of its root principles an abhorrence of chattel slavery was no small thing, however much subsequent – or even concurrent – events complicated the issue.

Friday, January 13, 2017

The Northwest Ordinance, Part V: American Ideals

            While it cannot be denied that the character and function of the writ and the statute is in large part what defines the United States of America as a culture – America, it has so often been said, is a nation of laws and not men – the vital context that gives meaning to the acts of Congress, the Constitution, and their state equivalents is the set of philosophical ideals upon which the country was founded at the end of the 18th century. These principles, since the First Continental Congress convened in Philadelphia in the waning months of 1774, have conditioned what was possible, acceptable, and sacred within the political sphere of the union of American states, as well as what was forbidden, illicit, or restricted. When statements of purpose and resolve were called for, they served the function of explaining to all and sundry exactly what it was the American experiment was supposed to be about. The Declaration of Independence – a kind of 18th century press release intended to announce and justify the secession of the Thirteen Colonies from the British Empire – was exactly this kind of tangible invocation of the principles which define the American model of republican self-government. Though it lacked the force of law, the force of its words – and here we nod respectfully to Messrs. Jefferson, Adams, Franklin, Sherman, and Livingston – have historically moved countless men and women to champion, re-examine, and redefine the promises and obligations at the heart of what it means to be American.

There are times, however, when rhetoric is not enough. On occasion, the principles upon which the United States was built – and more than once re-built – require the weight of legal sanction in order to maintain their pride of place. The codification of a bill of rights – attached to the United States Constitution as well as to the respective state constitutions – represents the pinnacle of this confluence of statute and principle. Because certain base moral values cannot be subject to the vagaries of public opinion, it has so often been concluded, they must be clearly defined and set above the authority of even the people’s elected representatives. Thus, in Philadelphia in 1787 as well as in nearly all of the thirteen original states at some point in the 1770s or 1780s, men possessed of education, good sense, and the trust of their neighbors set themselves to precisely clarifying the core values by which the acts and intentions of all future governments would be measured. This was no easy task even under the best of circumstances, and doubtless the effort often revealed a great deal about what had formerly been the ill-defined and yet much-invoked principles around which American republicanism revolve.

The authors of the Northwest Ordinance, it would seem, were as sensible as any of their countrymen had been – and would be – to the necessity of providing clarification within a frame of government for the fundamental values to which all subsequent law must conform. Section fourteen of the same document provides clear evidence of this inclination. Divided into six articles, it laid out precisely which rights and values Congress deemed it essential that the government of the Northwest Territory adhere to. As with the inheritance and franchise regulations discussed previously, however, the conclusion preserved in the text masks the discussion which must have taken place between its authors. After all, the framers of the Northwest Ordinance had been sent to Congress to represent the interests of the various states from which they hailed. And each of these states possessed their own political traditions and legal customs which collectively conditioned the kinds of laws their respective legislatures were inclined to pass. In order to eliminate any possibility of confusion or abuse, these core values were often codified as declarations or statements of rights and integrated into the relevant state constitution. Thus, while Virginia and Massachusetts and Pennsylvania could all be said to have agreed as of the late 1780s that certain principles were wholly inviolable, they did not always agree on exactly which principles enjoyed such hallowed status.

In the normal course of the business of Congress, disagreements of this nature likely mattered very little. The national government of the United States did not concern itself with defining or protecting the domestic rights of the people it claimed to represented, preferring instead to leave that to the states themselves. The Northwest Ordinance, however, because it aimed to create a state-like government under the authority of Congress, surely demanded that its authors confront the differences they respectively nurtured as to which rights or principles required the strongest protections. Americans, as the late war with Britain and the form taken by many of the various state constitutions made clear, would not tolerate living under the auspices of any government that failed to recognize the inalienable rights that they collectively recognized as their birthright. The Northwest Territory therefore required some kind of declaration of rights, just as it required a formula for determining who among its residents could vote in legislative elections. This was certainly easier said than done, however, as the states provided example, inspiration, and warning in equal measure.

            Brace yourself.

            Ahem…

            Consider, for instance, the constitution of Massachusetts. Written and adopted in 1780, its first section is properly referred to the “Declaration of the Rights of the Inhabitants of Massachusetts.” This introductory portion of the Bay State’s first and only republican frame of government contains thirty separate articles which variously concern themselves with protecting religious freedom, guaranteeing public support for religious worship and education, prohibiting the state from granting hereditary titles, providing that taxes will only be levied by the elected representatives of the people, and declaring unequivocally that the powers specifically allotted to the various branches of government shall not be exercised by any authority other than that which is explicitly stated. While such thorough attention to detail is certainly laudable, doubtless observers from other states might have questioned whether every right or guarantee named was entirely necessary. Freedom of religion, for example, was absolutely a principle upon which a robust positive consensus existed in late 1780s America. The provisions of Article III of the Massachusetts Declaration of Rights that provided for the public subsidization of religious worship and schooling, however, would no doubt have struck residents of states like New York or Virginia as overly specific. While publicly-funded primary schools – administered, naturally, by the local religious authority – was a cherished practice in Calvinist New England and would surely have seemed worth preserving to the framers of Massachusetts’ first constitution, many other states preferred to leave early education to individual families or private institutions.

Georgia presents a possible exception. Though its 1777 constitution did not possess an explicitly-labelled declaration of rights, a set of articles near the conclusion of the document do seem to speak to many of the same principles as the section of the Massachusetts constitution discussed above. More to the point, one of these articles – the fifty-fourth, in point of fact – stated that, “Schools shall be erected in each county, and supported at the general expense of the State, as the legislature shall hereafter point out.” Lacking the ingrained association between learning and religion that was common to New England, this provision of Georgia’s inaugural constitution nevertheless made clear the intention of the framers thereof – in common with their Massachusetts counterparts – to make state-funded education a matter of the highest legal significance. While Georgia and Massachusetts may have been alone among their sister-states in this shared conviction, it remains noteworthy all the same that at least two of the jurisdictions represented in the United States Congress in 1787 – the body responsible for drafting the Northwest Ordinance and the time of its publication – held that public education was rightfully a constitutional guarantee.   

Compared to the Massachusetts Declaration of Rights, the equivalent passage of Pennsylvania’s 1776 constitution is only half as long, at sixteen articles, and tended more towards concision than meticulousness. While both documents made a point of securing the rights of their respective subjects to alter or abolish their government, hold their elected representatives to account, expect taxes to be levied only by the relevant legislative assembly, and freely assemble to petition their government for a redress of grievances, Pennsylvania’s Declaration of Rights omitted much of the clarifying or emphasizing language found in its Massachusetts counterpart. It also made no mention of providing public funding for primary religious education – for reasons explained above – and included a number of guarantees not found in the latter document. Article III, for example, decreed, “That the people of this State have the sole, exclusive and inherent right of governing and regulating the internal police of the same.” Considering the practical non-existence of civilian police forces in the late-18th century Anglo-American world, this particular clause appears rather novel. Without being able to say for certain what its genesis might have been, it’s possible that the “internal police” of the state of Pennsylvania was simply meant to refer to the general peace and order therein. Thus, by claiming that the people of the Keystone state had the right to police themselves, the framers of the 1776 constitution may have intended merely to affirm that they and their fellow citizens were answerable to no authority but that which they themselves appointed.

It’s worth noting that the 1776 constitutions of Maryland and North Carolina both contain very similar clauses in their respective declarations of rights. In fact, both documents state, word for word, “That the people of this State ought to have the sole and exclusive right of regulating the internal government and police thereof.” The addition of the word “government” to this formula may have been highly significant at the time it was originally rendered, or it may have been a mere matter of style or rhythm. It is, again, very hard to say, owing mainly to the fact that the phrase “regulating the internal police (and/or government)” is quite vague. What can be said, at the very least, is that some states, like Pennsylvania, North Carolina, and Maryland felt that such a statement was important enough to include in their respective constitutions, while others, like Massachusetts, New Jersey, and South Carolina did not. While this may not appear to have been a terribly significant disagreement, the base intention of codifying this seemingly self-evident sentiment was doubtless far from trivial.

Like as not, those states which chose to adopt some variation on the “internal police” clause believed that without it, there may have remained some doubt as to the relationship between themselves and whatever higher authority they either chose to recognize or attempted to impose itself. Bearing in mind that many of the first American state constitutions were written at the height of the Revolutionary War, when the reestablishment of British authority – by force or by settlement – remained a distinct possibility, it perhaps seemed a wise precaution to ensure that the sovereignty of the American people receive clear and inviolable protection against future encroachment. By the same token, of course, in the event of an American victory, these same protections would have surely proven equally valuable in frustrating any potential expansion of the power of the fledgling national government. States that chose not to guarantee the regulation of “internal police” to their citizens perhaps did not fear either eventuality – a resumption of British control or the emergence of a centralizing Congress – or otherwise believed that the powers and protections they respectively possessed were security enough against any threatened loss of sovereignty.

In addition to those states which disagreed on the inclusion or exclusion of certain specific phrases or concepts within their codified declarations or statements of rights, there were yet other states whose constitutions entirely omitted any such inventory of first principles. The first post-independence governing charters of New Hampshire (1776), New Jersey (1776), New York (1777), and Delaware (1776) fell into this category, possibly demonstrating that some sizable percentage of the late-18th century American population were not wholly convinced of the efficacy of integrating a declaration of rights into their respective state constitutions. Lacking specific knowledge thereof, it at least seems possible that this sentiment arose from a similar set of concerns to those which would later act against the addition of a national Bill of Rights to the United States Constitution following its adoption in 1788. By unequivocally stating, critics of the idea then asserted, that certain specific rights were protected against the authority of the national government, it was accordingly implied that said government otherwise possessed the power to encroach upon aspects of American life which the plain text of the Constitution did not clearly name. That is to say, it was felt that the inclusion of a set of explicit prohibitions within the text of the Constitution would only begin a conversation about which powers the national government plainly possessed and which powers the specific provisions of the Bill of Rights implied it possessed.

Rather than empower the United States government to invade areas of administration and enforcement that were never intended to fall within its remit, opponents of the adoption of a Bill of Rights preferred to simply leave the Constitution as it was. The national government would function solely according to the text that the states had ratified, lacking the justification to do otherwise, and the rights of the people would remain safe and secure by default. Considering that some portion of the people who helped draft the constitutions of New Hampshire, New York, New Jersey, and Delaware were still alive in 1788 when this argument was being floated, it seems entirely possible that the lack of any declaration of rights in the constitutions of these states came from the same source as the case against attaching a Bill of Rights to their federal counterpart. Just as certain men maintained in 1788 that delimiting the rights of a sovereign people presented a dangerous opportunity for government to assume powers it might not otherwise have enjoyed, the same desired end result – the omission of an explicit declaration of rights – came to pass in a number of states over a decade prior. Coincidence, it may have been. Still, the fact remains that the necessity of an unequivocal declaration of rights as an integral part of a viable governing charter remained a matter of debate in the United States at least as late as 1787/1788.

Friday, January 6, 2017

The Northwest Ordinance, Part IV: American Law, contd.

            Section nine of the Ordinance defined the operation of the electoral franchise in a similar fashion to section four’s description of inheritance law – i.e. by forging a rough consensus between the at-times conflicting laws of the various states. As the previous discussion of entail and primogeniture made note, this process involved adhering to certain broad commonalities while disregarding specific exceptions. For instance, as was the norm within the Anglo-American world at the end of the 18th century, residents of the Northwest Territory would face age, residence, and property qualifications in order to either vote in or stand for elections to the lower house of the local assembly. Almost all of the states observed some variation on this basic framework, disagreeing mainly upon the quantity or value of property qualifying an individual to elect or be elected.

            Fair warning: here is where things get complicated.

            Under the terms of Georgia’s 1777 constitution, for example, candidates for the lower house of the state legislature were required to be twenty-one years of age or older, members of the Protestant faith, and, “Possessed in their own right of two hundred and fifty acres of land, or some property to the amount of two hundred and fifty pounds.” Maryland’s 1776 constitution followed broadly similar lines, requiring lower house members to be, “Above twenty-one years of age, and having, in the State, real or personal property above the value of five hundred pounds current money,” while New Jersey’s constitution from the same year decreed that those standing for election to the state house of assembly must needs have been, “For one whole year next before the election, an inhabitant of the county he is to represent, and worth five hundred pounds proclamation money, in real and personal estate, in the same county [.]” In terms of who was entitled to cast a vote, most of the states again followed the same broad pattern, in this case observing a property qualification that was lower than that which qualified a citizen to stand for election. New Jersey’s constitution accordingly limited the franchise to residents of the state, “Who are worth fifty pounds proclamation money […] and have resided within the county in which they claim a vote for twelve months immediately preceding the election [.]” Maryland’s constitution likewise granted a vote to,

All freemen, above twenty-one years of age, having a freehold of fifty acres of land, in the county in which they offer to vote [or] having property in this State above the value of thirty pounds current money, and having resided in the county, in which they offer to vote, one whole year next preceding the election [.]

Notable within some these excerpts is the use of the terms “real” and “personal” in reference to property. Within the common law tradition, real property is a subset of land that has been improved by the addition of buildings, infrastructure, or other features which might add to its value. Real property is immovable and illiquid – its full value cannot be quickly and easily redeemed – but stable. Personal property conversely refers, at least in the context of 18th century America, to moveable assets like farming implements, livestock, or other goods of value not considered to be part of a landed estate.

By tying the electoral franchise to a property valuation that was either real or personal, the framers of a number of the original state constitutions demonstrated a willingness to envision the body of voters and/or public officials as encompassing more than just the landed elite. While granting that these kinds of regulations still excluded large swathes of the respective state populations, it remains a noteworthy symbol of the evolving nature of American citizenship during the Revolutionary era that such allowances were made at all. In addition to practically enlarging the electorate, as well as the talent pool of prospective lawmakers, efforts like this to subtly widen the franchise implied something significant about the way Americans envisioned the contours of their respective political communities. The administration of public affairs – the central purpose of a republican government – were not to remain the sole province of an aristocratic landed gentry, it seemed. Rather, they were to embrace those members of society whose personal wealth – landed or otherwise – denoted their establishment and investment in the community whose future they desired to shape. For its time, this was a relatively progressive vision of what constituted the most vital interests in a given society and one which was no doubt intended as a partial rejection of the restrictive, rigid, and highly corrupt electoral practises of contemporary Great Britain.

As aforementioned, the Northwest Ordinance followed a similar pattern to many of the states in setting out which of its residents could vote in and/or stand for legislative elections. The ninth section thereof declared that individuals desiring to be elected to the lower house of the territorial legislature were required to be a citizen of any one of the existing states and a resident of the district they were hoping to represent, or else a resident of said district for at least three years, and in either case, “Shall likewise hold in his own right, in fee simple, two hundred acres of land within the same.” This definition of the electoral franchise would seem most similar to that cited above from Georgia’s first constitution, varying mainly by requiring a slightly smaller parcel of land (two hundred acres instead of two hundred and fifty). The comparable clauses of Maryland’s and New Jersey’s constitution meanwhile differ in that their respective property requirements were enumerated in a specific monetary amount, but they too adhered to the same basic principle of personal wealth as a condition of political participation. The decisions regularly faced by legislators were too weighty to entrust to people lacking a material investment in their community, or so the logic went. People who rented property and owned little of value could be swayed by promises of wealth or favor, and were potentially transitory. Thus, the framers of a number of state constitutions and of the Northwest Ordinance seemed to agree that only people of independent means could be relied upon to serve the public good.

This line of thought extended also into the realm of delineating electors from non-voting citizens. Returning again to section nine of the Ordinance, the final clause accordingly states,

That a freehold in fifty acres of land in the district, having been a citizen of one of the states, and being resident in the district, of the like freehold and two years residence in the district, shall be necessary to qualify a man as an elector.

As with Maryland and New Jersey, the qualification for the electoral franchise in the Northwest Territory was less severe than that which conditioned election to public office. As in the states, this was doubtless understood as an admission that selecting a representative legislator, while still far from a trifling responsibility, did not require the same quality of character or social standing as properly befit the legislator themselves. Worth noting, with this thought process in mind, is the fact that Maryland and the territory both required prospective voters to possess fifty acres of land in freehold, and all three jurisdictions cited specific residence requirements attached to the county or district wherein voting was to take place. Congress, it seemed, was of a mind with a number of the states as to who could stand for election and who could do the electing. It consequently follows that the former was inclined in 1787 to recreate or transpose the kinds of political communities that existed in some of the states – defined by the connection between property, wealth, and public service – in the vast and verdant territory they themselves were to administer for the foreseeable future.  

            Not every state in 1787 was home to political communities thus defined, however. While property ownership was perhaps the most common condition on office holding and the electoral franchise in the contemporary United States, it was not the only condition applied across that nation’s thirteen integral jurisdictions. In some states, the regulations defining who could vote and who could receive votes were a fair deal more complicated. This was owed in part to the simple fact that the Northwest Territory lacked an elected upper house – a body which in the states tended function under its own specific electoral rules – as well as to certain geographic and demographic distinctions. While the former represents a logistic reality – a land of settlers on the frontier of the United States, the Northwest Territory could not be expected to contain sufficient numbers of men sufficiently propertied to comprise an elected upper house – the latter arguably had more to do with history, culture, and social custom.

North Carolina, for example, separated the electoral franchise into individuals living in a county who could vote for members of the state House of Commons (freemen at least twenty-one years old, with a year’s residence in the relevant county and a record of having paid public taxes) and individuals living in a town who could vote for members of the state House of Commons (freemen otherwise entitled to vote in a county, or those with at least a year’s residence in a town and a record of having paid public taxes, provided that the former did not also attempt to vote in the county in which they qualified). Complicated though this may sound – and may in fact have been – there was some amount of logic to it. Major towns in states like North Carolina and Virginia were often long-established hamlets with origins dating back to the 17th century. Recognition of their antiquity and the accompanying political rights were consequently common features of the relevant state constitutions that were written in the late 1770s. Allowing un-landed taxpayers to vote in lower house elections was conversely quite progressive, and also somewhat less explicable. Presumably the framers of North Carolina’s first constitution determined that the House of Commons would benefit from having as large a constituency as possible. Then again, this provision may also have been intended to recognize the customary privileges of the state’s landless urbanites. Though lacking sprawling country homes in any of the state’s many counties, the merchants and shipping magnates of towns like Wilmington and Charlotte were far from insignificant to the political and economic order. Recognizing their taxed personal assets rather than just their real estate thus likely seemed an acceptable concession between their own social class and that of the landed elite.   
   
New York laid down a set of franchise restrictions in its own inaugural constitution that were only slightly less complicated than those practiced in North Carolina, but which also made allowance for certain of that state’s unique features. The relevant clause started of simply enough, stating,
                 
That every male inhabitant of full age, who shall have personally resided within one of the counties of this State for six months immediately preceding the day of election, shall, at such election, be entitled to vote for representatives of the said county in assembly [.]

To this very unambiguous qualification, however, the framers of New York’s governing charter added a series of stipulations unmatched in their specificity by the comparable franchise regulations of any other state. The theoretical male inhabitant named above, it first declared, could only vote for members of the lower house of the state assembly if, during the six month period noted, they had possessed a freehold worth at least twenty pounds in the relevant county; or had rented a tenement in the same at the value of forty shillings and had paid taxes to the state; or was a freeman of the city of Albany; or was made a freeman of the city of New York on or before October 14th, 1775.

Again, there was reason to this rhyme, maddeningly particular though it may seem. Being a freeman of a particular municipality, it bears noting, is a largely antiquated form of civic honor more or less equivalent to being granted the key to a city. In the 18th century, freeman status was often accompanied by a set of rights or privileges, up to and including the ability to vote in the relevant urban electoral district. Accordingly, the New York constitution’s reference to the freemen of Albany and New York City was meant to recognize the relatively small number of individuals who enjoyed specific rights within those jurisdictions. The former, though not yet the capital in 1787, was one of the oldest chartered towns in the state, having grown out of a Dutch settlement established in the early 17th century. This status, along with its population of approximately three thousand – one tenth of New York City, but greater than the capitals of either Maryland (Annapolis) or South Carolina (Columbia) – was doubtless felt to entitle it and its citizens to special recognition. New York City, meanwhile, was (by 18th century American standards) a metropolis of over thirty thousand whose unsurpassed influence over the economy of the state at large was doubtless felt to entitle it to certain specific concession in New York’s first constitution. Recognizing the franchise rights of its freemen – many of them doubtless members of the city’s powerful merchant class – was thus but one of a number of advantages the city derived from its prominence, its size, and its wealth.

Allowing men to vote who merely rented a forty shilling tenement was doubtless also seen to benefit New York City within the political order that the state’s 1776 constitution established. Pointing once again to its sheer size – Philadelphia, at approximately twenty-five thousand in 1787, was the only city in late 18th century America that came particularly close – there were surely thousands of men living in what is now the borough of Manhattan in the late 1780s who were old enough to vote, and politically conscious, but were unable to put together the funds to purchase property of their own. For reference, forty shillings was equal to two pounds in 1787, and the average farm income in colonial New York in the early 1770s was twenty pounds per year. Assuming, then, that the forty shillings to be paid in rent as a qualification for the franchise was meant to describe a yearly interval, the renter in question would have been spending about ten percent of what a farmer made in a year on housing. While this would doubtless have seemed quite high in the many county towns north of NYC, prices in the city proper were almost certainly higher on average than in the rest of the state.

As to why the framers of the 1776 constitution chose to factor this into their considerations when determining who among their countrymen would possess the franchise, it possibly represented a concession amongst the rural and urban interests – the wealthy landlords of Long Island and the Hudson valley against the merchants and stockjobbers of Manhattan – which between them comprised the upper strata of the Empire State’s social hierarchy. Because in addition to the landless urbanites of New York City – a population that the city-dwelling elite doubtless hoped to mobilize on their behalf – the upstate manor lords also served to benefit from the enfranchisement of a traditionally dependent population. Namely, these were the tenant farmers from whom New York’s landed elite derived a large portion of their income. Owning no real property of their own, they lived in a pseudo-feudal relationship to their hereditary landlords. As the democratic impulses unleashed by the Revolution promised effective electoral power in exchange for securing the franchise for their wards, the upstate landed gentry doubtless found ample cause to agree with their urban counterparts on the generous terms previously mentioned in the state’s first post-independence governing charter. The resulting electoral franchise model, while in many ways unsuitable for emulation in other jurisdictions, was as valid as the more straightforward templates practiced in Georgia, or Maryland, or indeed the Northwest Territory. 

            Still other states in 1787 – representatives of which, it bears remembering, participated in the formulation and approval of the Northwest Ordinance – had settled upon franchise regulations that were chiefly distinguished by their Spartan simplicity. Pennsylvania was perhaps the paramount example of this streamlined ideal. Its 1776 constitution, radical in so many aspects, followed suit in the terms it laid down for the regulation of elections. To qualify as an elector, it stated, a freeman need only be twenty-one years of age, have resided in the state for at least one year before the exact date of the vote, and have paid public taxes during that time. Those standing for election to the House of Representatives – the state’s unicameral legislature – were likewise to fulfill a residence requirement – two years in the city or county in question, rather than one year in the state – but were evidently exempt from having either to pay taxes or own property. Thus defined, Pennsylvania’s electorate in the late 1770s and into the 1780s would have been one of the largest in the United States, if not the absolute largest, as a proportion of its overall population. It would also likely have been relatively well-distributed throughout the state – in cities and towns as well as the countryside – and thus highly representative of the general population.

            Not being able to point to specific economic or geographic characteristic as the root cause of specific electoral considerations – if for no other reason than there were none – it seems likely that Pennsylvania’s lax franchise requirements had their origin in its distinct history as a political community. Founded by Quaker William Penn (1644-1718) in 1682, the Province of Pennsylvania was governed throughout its history by a series of documents, all referred to as the “Frame of Government.” These charters, drafted by the assembled notables of the colony, represented a mixture of Penn’s humanist ideals, the terms of governance spelled out in the royal charter granted by Charles II (1630-1685), and the often clashing interests of Pennsylvania’s Quaker and non-Quaker residents. The third of these elements ultimately proved the most difficult to reconcile, and at various times the percentage of the population able to vote and/or hold office reflected the ascendancy of either the settled Quaker landlords or the mainly-urban Protestant immigrant community. This conflict persisted in various forms throughout the 18th century, and by the 1770s had in many ways – along with a longstanding guarantee of freedom of religion – come to define the political culture of Pennsylvania.
             
            Doubtless exhausted by decade upon decade of communal squabbling over political preeminence, the framers of Pennsylvania’s 1776 constitution likely welcomed the chance to establish their independence upon firmly egalitarian footing. The rhetoric of the ongoing Revolution provided the ideal intellectual grounding for such an attempt, concerned as it was with lofty concepts like liberty, justice, and certain self-evident truths. Indeed, the fact that the assembly of American notables whose statement of purpose was the Declaration of Independence made its home in Philadelphia – and even met in the colony’s state house – perhaps helped to concentrate the minds of many Pennsylvanians upon the deficiencies embodied by their own government and the social and cultural conflicts they had historically engendered. By wiping away the petty distinctions that had previously defined their shared political community and establishing in their place a system of government predicated on a practical guarantee of individual and collective equality, the citizens and statesmen of Pennsylvania thus set themselves to a dual purpose. On one hand, they actively embodied the humanist ideals of the American Revolution in the basic shape and function of their government, which in a very real way also fulfilled the egalitarian promise upon which the colony had originally been founded in the 17th century. And on the other hand, they effectively lay to rest the sectarian social conflict and the associated distractions and inefficiencies that had plagued them for nearly a century. Granted, simply opening up the franchise would not – and in fact did not – solve or prevent every political conflict the people of Pennsylvania encountered. That being said, the relevant franchise rules represented a response to the link between electoral politics and sectarian conflict that was unique to the Keystone State and no less viable for it.

            My readers can be forgive for asking at the juncture – as I so often give them cause to – just what this deep dive into the franchise laws of half a dozen different states has to do with the Northwest Ordinance and the territory it created. Admitting that we may have ventured a little far into the weeds, there was, rest assured, a purpose to it. As previously discussed, the Northwest Ordinance was drafted by the delegates to Congress in attendance as of July, 1787. These men had been chosen to represent the states from which they came in the national council of the United States of America, and thus embodied both the particular interests of their individual communities and the collective interests of the country at large. In some respects, the way that each of them understood law, and land, and electoral politics varied significantly. In spite of certain broad commonalities, inheritance law and election law functioned quite differently between states like New York, and Pennsylvania, and Georgia, and North Carolina. In the normal course of the business of Congress, this would likely not have mattered much. The fact that forty shilling renters in Manhattan could vote in lower house elections while their counterparts in Savannah lacked the same privilege had very little to do with defining interstate commerce regulations or attempting to formulate a trade impost that a majority of the states might actually abide by. The United States in Congress Assembled, as the national government was known between 1777 and 1789, didn’t oversee affairs of domestic concern like elections or estate law, concerning itself instead with matters of a specifically and exclusively national character (foreign trade, national defense, diplomacy, etc.).

            The Northwest Ordinance therefore represented something rather unusual. For the first time, the collective political authority of the United States took on the task of creating a domestic jurisdiction over which it would exercise unquestioned sovereignty. Of course the ultimate intention was for said jurisdiction to be settled and subdivided into states, each of which was to be functionally and legally the equal of the original thirteen. Nevertheless, the temporary government to be erected in the meantime required careful attention. Its basic contours would define the political community that emerged from within the relevant territory, and in turn within the states that it spawned. The task that fell to the framers of the Ordinance was thus a formidable one – in addition to closely observing the United States of America as it then existed, for examples to replicate or avoid in the territory in question, they must also have considered what shape the nation needed to adopt in order to prosper in the years to come.