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.
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