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.
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