As
referred to in the first post of this series, the Northwest Ordinance
represented perhaps the single largest increase of national government
authority in the history of the United States up to the date of its passage in
July, 1787. At a time when Congress, the lone organ of the United States
government under the Articles of Confederation, lacked the power even to
collect taxes from the states without their cooperation, this piece of
legislation gave it an unprecedented quantity and quality of control over the
administrative and legal affairs of a territory far larger than any of the
thirteen states then in existence. Even granting that the government mandated
by the Ordinance was intended to be a temporary one, and that an elected
territorial legislature was intended to take over lawmaking duties once a
large-enough population was established, the settlers making their home in the
territory would experience federal authority like the residents of no other
state ever had.
How this would shape, and in fact
did shape, their perception of the national government and its purpose is, to
some degree, a matter of speculation. Of the states that have acceded to the
American federal union between the 1790s and 1950s, a sizeable number emerged
from federally-organized territories. These states – including, among others,
Ohio, Indiana, Illinois, Tennessee, the Dakotas, Nevada, and Utah – have not
historically been all that reticent to challenge the national government in
order to protect what they perceived as their rights within the federal
compact. That being said, a survey of the powers granted to Congress in the
Northwest Territory – the first of its kind, and a pattern for many that
followed – taken into consideration with how little influence the national
government otherwise enjoyed prior to the ratification of the Constitution,
cannot but incline one to believe that the migrants who first staked a claim in
that far-off frontier of the nascent American republic understood that they
were settling in a region of the United States unlike any they had previously known.
Divided
into fourteen sections – the last of which is further subdivided into six
articles – the Northwest Ordinance makes evident as early as its third section
a willingness to place key decision-making authority squarely in the collective
hands of Congress. Therein, the document decrees that, “There shall be
appointed from time to time by Congress, a governor, whose commission shall
continue in force for the term of three years, unless sooner revoked by
Congress [.]” Three specific elements of this clause are worth examining
further. The first, and most obvious, is the fact that the governor of the
Northwest Territory was to be appointed by Congress instead of elected by
either the voters of that territory or their representatives in the territorial
legislature. In light of the vast size of the region in question, and the
military and executive responsibilities associated with the office of governor,
this provision of the Ordinance essentially made the national government of the
United States – unable, at that time, to even guarantee the terms of a commerce
treaty – responsible for anointing perhaps the single most powerful public
servant in the nation. While there was absolutely a practical dimension to this
choice – because the territory would begin its existence with a negligible
settled population, popular gubernatorial elections would not have been
feasible at the outset – it undeniably embodied a new precedent in the ongoing
relationship between American citizens and the union of states they nominally
belonged to. Unlike in almost every state then in existence, whose citizens
either chose their chief executive, or elected those who did, residents of the
Northwest Territory would have virtually no input into who led the government
that was intended to serve their interests.
Also
worth commenting upon is the length of the territorial governor’s term in
office. At three years, it was on the high side of what was deemed acceptable
under the aegis of contemporary American political thought. The first
constitutions of Maryland, Massachusetts, New Jersey, North Carolina, and
Georgia, by comparison, all provided for governors with one year terms only.
South Carolina’s 1778 constitution – its second, after an earlier attempt in
1776 – was somewhat more generous, allowing for a two year gubernatorial term,
while Pennsylvania’s was somewhat more stingy, choosing instead to vest
executive authority in a twelve-member Supreme Executive Council. Indeed, of
the original thirteen states, only Delaware and New York possessed
constitutions that allowed their respective chief executives to remain in
office for full three years between elections. That Congress chose to apply
this same lengthy term to the territorial governorship described by the
Northwest Ordinance, in spite of how much more common it was for analogous
public officials in the states to face annual elections, would seem to be
rather telling of said body’s perceptions and priorities. Granting that the
Governor of the Northwest Territory would face Congressional review at the
elapse of three years rather than popular election, the codification of a three
year term implied a high, if not uncommon or imprudent, degree of trust on the
part of Congress towards their chosen appointee. Term limits on public offices,
as practiced in the states, customarily existed because trust was generally
considered a poor basis on which to form a government. Men could not be trusted
to serve their neighbors faithfully without sufficient oversight or
disincentive towards dishonest behavior. Annual elections were thought to serve
this purpose in most states, or else making the governor directly accountable
to the general population. As the aforementioned territorial governor was set
to function under neither of these stipulations – being triennially appointed
by Congress – the result would seem to have been an office which enjoyed a
great deal of freedom and limited supervision.
Similarly
striking was the determination of Congress to make its executive appointee in
the Northwest Territory removable at leisure. This meant, presumably without
needing to demonstrate any specific wrongdoing, that the territorial governor
could be recalled and replaced by said body at any time its members chose. If
sole Congressional appointment was not enough to tie the chief executive of the
Northwest Territory to the will of the contemporary national government, this
provision doubtless sealed that relationship in an especially firm manner. While
a number of states made allowance for the impeachment and removal of public
officials in their constitutions, the attendant procedures tended to be
somewhat involved – i.e. accused officers of a state government could generally
be recalled only once their guilt had been determined via a trial. The Governor
of the Northwest Territory evidently possessed no such due process protections.
Appointed by a majority vote in Congress, they could presumably be removed by
the same procedure at any point during their term in office. Combined with the
three-year term they theoretically enjoyed, the chief executive of this vast
and isolated territory would seem designed to occupy a rather curious and
uncommon position within the contemporary United States.
Separated from Congress – located
in the late 1780s in New York City – by a great physical distance, and enjoying
a comparatively lengthy term in office, the Governor of the Northwest Territory
would presumably come to feel the oversight of the national government fairly
lightly. Having to face reappointment, under normal circumstances, only once in
every three years, a natural conclusion to draw would doubtless be that the
members of Congress trusted the governor to attend to their duties as they saw
fit. At the same time, however, the ability of Congress to remove the governor
at pleasure would no doubt loom over the thoughts and actions of the officer in
question. Granted, Congress – again, under normal circumstances – would likely
not be monitoring them all that closely. If word reached New York that an
indiscretion had been committed, however, there would seem to have been no
institutional safeguards in place to prevent their immediate dismissal. In
light of these provisions, the ideal candidate for the governorship of the
Northwest Territory would seem to have been someone who was confident in their
abilities, if not also reasonably ambitious, flexible in their capacity to
create and pursue policy objective without a great deal of supervision, and
generally in agreement with Congress as to the nation’s priorities in the
wilderness of the western frontier. No contemporary state governor enjoyed that
kind of freedom, or was in any way likewise beholden to the national government.
The Governor of the Northwest Territory thus represented a novel office in the
United States of the 1780s, and one whose unique suite of powers and
responsibilities would doubtless have a significant impact upon the
citizen-settlers who came to live under their authority.
The exact nature of these powers
and responsibilities, and their implication for the residents of the Northwest
Territory, also bears some consideration. Section six of the Ordinance decrees
that the Governor, “For the time being, shall be commander in chief of the
militia, appoint and commission all officers in the same below the rank of
general officers [.]” “All general
officers,” it further adds, “shall be appointed and commissioned by Congress.” It’s
worth noting that under the circumstances of life in the Northwest Territory –
where settlements were not infrequently the victims of Native American raiding
parties – a Congress-appointee led and staffed militia made a certain amount of
sense. A territorial legislature, elected by the general population, might have
been better suited under the auspices of American republican philosophy to see
to the leadership and deployment of such a force, but the threat to American
lives would not wait for the formation of such an institution before asserting
itself. The Northwest Territory was located in a dangerous neighborhood – at
the intersection of competing British, United States, and Native American land
claims – and its successful administration demanded vigilance, perhaps above
all else. That being said, it was far from uncommon for state governors to
enjoy the status of commander-in-chief of their respective militias, or for
general officers in the said militias to be subject to legislative appointment.What
set this provision of the Northwest Ordinance apart from analogous sections of
the various state constitutions were the elements of national government
oversight it mandated and the military restrictions that Congress otherwise
operated under.
The Continental Army, under the
direct authority of Congress, had been effectively dispersed at the conclusion
of the American Revolutionary War, owing in the main to the suspicions
Americans fostered towards the concept of maintaining standing armies during
peacetime. Commander-in-Chief George Washington famously resigned his
commission in December, 1783, and the many state-raised regiments shortly
returned home and demobilized. Congress issued orders for a major reduction in
the size of the force under its own command in October, 1783, and in June, 1784
declared the army of the United States entirely disbanded. In light of certain
security concerns – particularly concerning the integrity of America’s claims
in the Great Lakes region – this final order was countermanded a day later, and
a mutually agreeable settlement was enacted which combined all forces remaining
under the command of Congress into a single regiment. This force, referred to
as the First American Regiment, was limited in size to seven hundred men
serving a one year enlistment, staffed by officers chosen by the contributing
states, and commanded by an individual appointed by Congress. Absent further
legislation, which was not necessarily forthcoming considering the sensitivity
of the topic, this force could not be expanded, and it required the willing
participation of the states to maintain its base strength.
By granting the title of militia
commander-in-chief to the Governor of the Northwest Territory, a position which
it was responsible for filling, Congress essentially found a way around the
terms of the post-Revolutionary United States military settlement. Unless or
until the territorial legislature set limits on its size and composition, the
territorial militia faced none of the restrictions borne by what remained of
the Continental Army. And yet, like that force in its 1770s heyday, its
leadership would be vetted and appointed by Congress. In none of the states
would such a force have been permitted to operate. Indeed, the First American,
the only national army formally permitted to exist, was stationed exclusively
in the region that would eventually become the Northwest Territory, far from
any states that might have felt threatened by its presence. For the scant
residents of this region prior to 1787, however, there could be no escaping the
reality of a national American military establishment. The Ordinance further
solidified this prospect by placing its congressionally-appointed chief
executive and his similarly-selected subordinates at the head of a
vaguely-defined military force whose jurisdiction encompassed more territory
than any three states combined. There would, as a consequence, be federal
troops in the Northwest Territory, in the form of the First American Regiment
or the local militia. At the same time, there would be increasing numbers of
civilian settlers. The effect of this proximity, once again considering
Americans’ historical antipathy towards standing armies, was bound to be
significant, whatever form it eventually took.
Sections seven and eight of the
Northwest Ordinance seemed to embody the same logic as section six – i.e. the
territorial government needed to hit the ground running and couldn’t afford to
wait for an indigenous legislature to sort out every administrative detail – in
laying out some of the managerial responsibilities of the territorial governor.
The first of the two provisions declared that the selfsame chief executive was
authorized to, “Appoint such magistrates and other civil officers in each
county or township, as he shall find necessary for the preservation of the
peace and good order in the same [.]” This power was to adhere to the governor
until the abovementioned territorial legislature was called into session, at
which point, “The powers and duties of the magistrates and other civil officers
shall be regulated and defined by the said assembly.” Once again, there was a
good deal of sense in this measure. Long before there would be five thousand
adult males in the territory, thus fulfilling the requirement for the creation
of a legislature, there would need to be sheriffs, justices-of-the-peace,
county coroners, and any number of other minor officials deemed necessary for
the competent administration of an American republican-style government.
That being said, allowing the
governor to appoint the majority of the civil servants in the Northwest
Territory, likely for years at a time, gave that office a high degree of
influence over the character of the government therein. At a time before
anti-corruption legislation, which 1787 certainly was, there were virtually no
institutional barriers to the governor selecting only men known to be faithful
to his vision for the territory. At the same time, because the governor himself
was selected by Congress, it was entirely possible, in not likely, that the
chief executive of the Northwest Territory would seek to make appointments in
keeping with his own sense of what gratified the national government. In either
case, rather than represent the needs or desires of the communities they
served, the county and township-level public officials in the first years of the
territory’s existence would arguably represent the agenda of a
federally-appointed administrator and his Congressional constituents. And even
when this ceased to be true – even once a territorial legislature had been
established, and thereafter taken up responsibility for regulating the
appointment of low-level civil servants – the preference of the governor was
still bound to be felt in the immediate. Whether county magistrates were
elected or appointed by the legislature, the incumbent officeholders appointed
by the governor were bound to enjoy a distinct advantage over uninitiated
competitors – having previously performed the job in question, thanks to the
largess of their benefactor the territorial chief executive, they likely stood
a good chance of having their experience ratified and their position confirmed.
In consequence, before or after a local legislature was formed, the Governor of
the Northwest Territory was certain to exert a tremendous influence over even
the low-level, day-to-day administrative affairs of the regional government.
The aforementioned eighth section
of the Northwest Ordinance gave further notice of the potentially pervasive
quality of the governor’s influence by granting said office the authority to create
civil and criminal court divisions and provide for the establishment of
counties and townships out of land secured via treaty with local Native
Americans. The latter power was rather vaguely defined, and appeared
unaccompanied by an additional clause shifting responsibility to the
territorial legislature once it came into being. “For the execution of
process,” the enabling passage read, “criminal and civil, the governor shall
make proper divisions thereof [.]” A great deal could potentially be read into
this provision – as to which specific processes it referred to, for instance,
or what the term “proper” was supposed to mean – but even a plain-text reading
would seem to have devolved a great deal of personal discretion upon the office
of governor. Not being subject to legislative interference or usurpation, the
chief executive of the Northwest Territory could presumably have created
whatever judicial divisions he saw fit to serve either his needs or those of
Congress. In the southern reaches of the territory, for instance, most likely
to be settled by people from the Southern states, a governor originally from a
Northern state could have attempted to establish court districts that made Southerners
a minority in the eyes of the relevant justices. Potentially in fear of
pro-slavery Southern culture overwhelming the character of the territory, the
governor in question would have thus effectively created a legal environment
wherein plaintiffs aligned with Southern political and social values would
appear before the courts far less often than their Northern-affiliated
neighbors. The Northwest Ordinance gave the territorial governor the power to
do just that, and with no written check against its use.
The second clause of section eight,
relating to the aforementioned disposal of Native territory, was less
open-ended that the first, but still potentially allowed for a great deal of
executive – and through the chief executive, Congressional – influence over the
basic lived circumstances of the Northwest Territory’s residents. “He shall
proceed from time to time,” it said of the territorial governor,
As
circumstances may require, to lay out the parts of the district in which the
Indian titles shall have been extinguished, into counties and townships,
subject, however, to such alterations as may thereafter be made by the
legislature.
Granting that, as with other
executive powers denoted by the Ordinance, this particular responsibility would
eventually devolve upon the territorial legislature, it nevertheless would
allow the governor to define to a very large extent what the Northwest Territory
and its successor states would look like. Within the 18th century
American model of republican government, and particularly under the terms of
the previously-mentioned Land Ordinance of 1785, counties and townships were
extremely important base units of community organization. Being able to defined
them at the outset of the territory’s existence – thus defining, among other
things, which townships were formally recognized, which counties they belonged
to, and where the administrative boundaries of said counties began and ended –
essentially granted the governor the ability to decide where local political
power would be concentrated, where communities took root, and what shape the
states to be carved out of the territory would eventually take.
Granting – again, again, again –
that the local legislature would eventually absorb this power as well, it
strikes as somewhat arbitrary, and thus unlikely, that said body would elect to
undo the administrative divisions made by the governor, particularly if a number
of years had passed since their establishment. In consequence, the townships
and counties delineated by the governor of during the period of his
unchallenged supremacy would very likely become permanent fixtures of the
Northwest Territory and the states that emerged from it. In consequence of this
and the other responsibilities denoted above, the chief executive of the first
nationally-administered territory in the short history of the United States
could be said to wield, as of 1787, more power than any single statesman, civil
servant, or military officer in the nation. Not only would the governor command
a military force without limits on its size, form treaties with Native
Americans, and appoint a host of territorial magistrates and administrative officials,
but he would be capable of shaping, through the exercise of his codified
responsibilities, the political and legal culture of the temporary jurisdiction
in his charge and the permanent sovereign entities intended to be formed from
within it.
Not bad, for a glorified bureaucrat.
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