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 18^th 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 18^th 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 17^th 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 14^th, 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 18^th 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 17^th 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 18^th 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 18^th 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 18^th 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 17^th 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.