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.

The Northwest Ordinance, Part III: American Land, contd.

Section four of the Northwest Ordinance further reveals the apparent determination of Congress to exercise significant influence in the territory through its appointment of key executive officers. Therein, the position of Secretary of the Northwest Territory was defined, whose duty it was to,

Keep and preserve the acts and laws passed by the legislature, and the public records of the district, and the proceedings of the governor in his executive department, and transmit authentic copies of such acts and proceedings, every six months, to the Secretary of Congress.

Like the Governor, the Secretary was to be appointed by Congress and removable at its discretion. Unlike the Governor, the position was accompanied by a four year term in office. Taken together, these provisions theoretically made the Secretary, if not more powerful, a fair bit more influential than the chief executive of the territory. Enjoying an extra year in office – making the Secretary one of the longest-serving public officials in the United States, save some state judges – and possessing sole responsibility for keeping the public records of the territory and transmitting them to Congress, this innocuous-sounding position had the potential to be either a powerful check on the authority of the Governor or an accomplice to his schemes.

            Indeed, since the Governor could be removed at the pleasure of Congress, and since one of the Secretary’s central responsibilities was to record “the proceedings of the governor in his executive department” and transmit them to Congress, it stood to reason that the latter office would theoretically function as a check on the actions of the former. That is, unless the two occupants of the same came to some sort of understanding whereby the Secretary agreed to communicate only selective excerpts of the Governor’s actions to the relevant national authorities in exchange for, say, some quantity of land secured through treaty from local Native tribes. Then again, as the appointee of Congress, it may have behooved holders of the office of Secretary of the Northwest Territory to fulfil their stated responsibilities with all due exercise of loyalty and integrity. A four year term in office, with no limits on reappointment and unaccompanied by the prospect of popular elections, would doubtless have functioned as a powerful incentive towards continued honesty. And it was certainly true that the office of Secretary, as described by the Northwest Ordinance, seemed a powerful office even in the absence of collusion with the territorial chief executive. The sole institutional conduit through which Congress was to be kept abreast of territorial affairs, the Secretary could wield a great deal of influence depending on what they reported, how they structured their reports, what they drew attention to, or what they chose to omit or elide. In light of the authority Congress determined to exercise in the territory, the status of the Secretary as that body’s eyes and ears would surely have left them well-positioned to promote the agenda of the national government or shape it in turn.

            Section four of the Northwest Ordinance also provided, in a very succinct fashion, the framework for the territorial judiciary. “There shall also be appointed,” it stated, “a court to consist of three judges, any two of whom to form a court, who shall have a common law jurisdiction, and reside in the district […] and their commissions shall continue in force during good behavior.” Assuming, for lack of any indication to the contrary, that the appointments in question were to be made by Congress, the judges of the sole court in the Northwest Territory were to be the first federally-selected justices in the history of the United States. Recalling that the national government under the Articles of Confederation did not possess a judicial branch, and putting aside the fact that the Constitution would very shortly put in place a national government that did, this prosaically-phrased provision of the Northwest Ordinance accordingly represented a highly significant innovation vis-à-vis the powers of Congress. Whereas legislatures draft laws, and chief executives attempt to enforce them, judges determine how they are properly interpreted in day-to-day life. By placing this responsibility in the hands of men appointed by themselves and removable by themselves, Congress theoretically created a space within the contemporary United States – the Northwest Territory – wherein its chosen officers both enforced the law of the land and determined what that enforcement would entail. Nowhere else in 1780s America was this the case, and it stands to reason that the trio of judges in question would feel to some degree inclined to promote or adhere to the priorities of the authority to whom they owed their offices. Thus, Congress would again make its will felt in the Northwest Territory and help shape the political and legal culture(s) that would eventually emerge there.

            As if this weren’t enough to ensure strong federal oversight in the territory, Congress further involved itself in the domestic affairs thereof by, in section eleven of the Northwest Ordinance, making the upper house of the legislature federally appointed. Said legislature was to be formed once five thousand “free male inhabitants of full age” had taken up residence in the region, with one representative being elected for every five hundred inhabitants up to a maximum of twenty five, and after which the ratio of voters to legislators was to be altered as needed. This House of Representatives was joined by a Legislative Council composed of five members, each with five year terms. The territorial equivalent of the senates or councils employed by a number of contemporary state governments, this body was to be chosen via a rather involved process which seemed intended to once again prejudice the discretion of Congress over that of the Northwest Territory’s actual residents. “The Governor,” the Ordinance accordingly decreed,

Shall appoint a time and place for [the representatives] to meet together; and, when met, they shall nominate ten persons, residents of the district, and each possessed of a freehold in five hundred acres of land, and return their names to Congress; five of whom Congress shall appoint and commission to serve as aforesaid [.]

Allowing that the popularly-elected House of Representatives was to select the initial ten candidates for office – ensuring that the five ultimately appointed would still be of their choosing – leaving the final decision to themselves gave Congress, in addition to influence over the executive and judicial branches of the territorial government, significant sway over its legislative affairs.

            The opening clause of the passage cited above also bears some comment, innocuous though it may seem. For the purpose of nominating individuals to sit in the upper house of the territorial legislature, it directed that the governor “shall appoint a time and place” for the assembled members of the lower house to meet. While in some respects resembling little more than a logistic formality, this stipulation carried with it certain implications perhaps not immediately evident to a 21^st century readership. In the late 18^th century, and particularly in the frontier west of the contemporary United States, the location and timing of public assemblies was a topic of widespread concern. The poor quality of roads, limited viability of waterways, and seasonal impassibility of certain types of terrain made it necessary for legislative bodies or political conventions to meet within specific calendar windows and in specific locations so as to ensure as large an attendance as possible. Debates over the time and place of certain assemblies were, as a result, far from uncommon – often as not boiling down to one group or another declaring that meeting at site A rather than site B made it harder for the residents of region X to attend while giving advantage to the people of region Y.

Indeed, one of the major controversies at the core of the ratification of the proposed United States Constitution, surrounding a clause in Article I, Section 4, touched upon this very issue. “The Times, Places and Manner of holding Elections for Senators and Representatives,” the passage in question read, “shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing [sic] Senators.” Uncomfortable with the notion of allowing an arm of the national government to override the authority of the states, and in such a way as to provide a potential advantage to national interests, critics of the Constitution seized upon this provision as one piece of evidence among many of the erosion of state prerogatives secretly desired by supporters of a stronger federal government. While the section of the Northwest Ordinance that gave discretion to the territorial governor to select the time and place for an upper house nominating convention predated this clause of the United States Constitution, and applied to a different facet of the federal/state/territorial relationship, it nevertheless partook of the same controversial political issue.

Permitting the Governor of the Northwest Territory to set the time and place of upper house nominations as they saw fit – just as allowing Congress to override the states in terms of when and where they elected federal representatives – gave the authority in question an ideal opportunity to prejudice the outcome of the relevant process in their favor. If said governor believed that the representatives of the far western portion of the Northwest Territory were likely to nominate men to the Legislative Council whose interests were at odds with either his or those of Congress, there was seemingly nothing to stop him from setting the relevant meeting as far to the east as he could, and at a time of year when travel over long distances was either inhibited or made entirely impossible. Thus, while respecting the letter of the law and the right of the territorial House of Representatives to nominate men of their choosing to sit in the upper house, the chief executive of the Northwest Territory could effectively “stack the deck” of the legislative process in whatever manner he felt it to be most expedient.   

While the outcome of all of these provisions would, of course, depend on the make-up of Congress at any given moment – whether nationalists or state-focused federalists were in the majority – it nonetheless seems unlikely that the delegates therein would approve the appointment of governors, judges, or legislative councillors in the Northwest Territory whose priorities or intentions directly clashed with their own. This is not to say, let it be made clear, that the people of the Northwest Territory would be beholden to Congress in every facet of their public affairs. The General Assembly, as the Ordinance refers to the territorial legislature, would be most responsive branch of government to the will of the district population, as with the legislatures of the contemporary states. And the chief executives or upper houses of the state legislatures were often appointed – Senators in Maryland, for example, were chosen by electors who were in turn elected by the general population, while the governors (or presidents) of New Jersey, North Carolina, South Carolina, Georgia, and Delaware were appointed by their respective legislatures rather than via a general ballot. The citizens of the various states were therefore, in 1787, far from unfamiliar with the concept of different branches of their government representing different interests within the established political order. What they were not accustomed to, however, was for any branch of the government intended to directly serve their needs to represent an interest above or outside of the political order.

Congress, in more ways than one, was exactly that kind of alien and unfamiliar interest. Being a collective body with members from all thirteen states, whatever consensus it arrived at – the Northwest Ordinance being a notable example – of necessity had to represent a compromise among different the sections of the United States, their perspectives, and their priorities. The needs of New England were different from those of the South, which in turn were different from those of middle states like Pennsylvania or New York; compromise was the only answer if the federal union was to be preserved. This fact, combined with the relatively unusual portfolio Congress possessed – foreign relations, international trade, and interstate commerce, none of which any of the states had much experience with – doubtless produced in members thereof an appreciation for the United States as a singular entity that was similarly unusual among residents of the various states. Granting, again, that not every man who served in Congress was an ardent nationalist, the priorities embodied by, among others, the Land Ordinance of 1784, the Land Ordinance of 1785, and the Northwest Ordinance of 1787 would seem to lend credence to this assertion.

Delegates to Congress, at least some part of the time, thought of the federal union as an entity in itself. They speculated as to how it would expand, considered how this expansion might best be structured and put in place regulations to that effect. They thought about the big picture, or tried to, and created systems and frameworks that meshed traditions native to different states and political cultures. For an entity like this – inclined to think in terms of what benefited all Americans rather than the citizens of this or that state – to insert itself into the executive, judicial, and even legislative processes of an organized, state-like jurisdiction represented a significant break with the history of the various states. Conditioned to perceive intrusions into their domestic affairs as attacks on their sovereignty – by the traditions of 17^th century British rights culture and the events of the Revolution alike – late 18^th century Americans generally identified their state as their “home country” and understood the United States as an alliance of independent nations intended to answer the needs of military necessity. Living under the authority, indirect or otherwise, of the United States – embodied by Congress – would accordingly have seemed exceptionally strange, if not potentially threatening to their liberties.

Congress was not elected by the people of the states it represented, its intentions did not directly align with those of any state, and it claimed sole responsibility in a number of policy areas that were almost wholly unknown to the governments of the states. The Northwest Ordinance thus effectively created a new species of political entity within the borders of the United States – a territory that was not governed by any state, but by all the states, in their collective interest, and aided by unique knowledge and experience. It was to be an American land, governed by American public officials and overseen by the sole American assembly. Its residents would be shaped by this novel context, whether they knew it or not, and in time their understanding – and that of their children, and their children’s children – of what the United States was and what it wasn’t was bound to shift. The character of the political communities that would emerge from such a place was, as of 1787, anyone’s guess.

The Northwest Ordinance, Part II: American Land

            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 18^th 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. 

The Northwest Ordinance, Part I: Context

In an effort to keep things from growing stale, and in the interest of staving off the point at which this series runs out of things to discuss, this week will introduce a type of document that has heretofore not been subject to investigation. Previously, every piece of literature examined here was the product, principally or totally, of a single individual. Much was made of Thomas Paine’s Common Sense, or John Adams’ Thoughts on Government, for instance, and through them the relationship between the authors of the American Founding, their intentions, and the ways they pursued them. This has been, and will continue to be, a fruitful and rewarding avenue of inquiry. Coupling 18^th and 19^th century political philosophy to distinct personalities goes some distance towards humanizing the events and concepts being discussed, and bring with it an extremely useful dimension of context and motivation. That being said, there are some documents instrumental to an understanding of how the modern United States came to be that cannot be so easily attributed to a singular personality.

In truth, this should not come as much of a revelation. The Revolutionary War and American independence both spun out of the response to inflexible British tax policy by a multiparty council of the American states – i.e. the Continental Congress. This body, existing in roughly the same form between 1774 and 1789, essentially governed the United States of American during its formative era, and oversaw the nation’s military strategy, diplomatic priorities, economic policy, and commercial activities. While it cannot be denied that it did not attend to all of these responsibilities with equal competence, Congress was one of the only tangible embodiments – along with the Continental Army – of the American union for full fifteen years, during which a war was fought, a peace was declared, and the first modern republic was born. It thereby stands to reason that, in spite of the periodic ineffectiveness of Congressional authority, a great deal of the documentary foundation of the United States was laid by this collective body.

Unlike such noteworthy texts as the Declaration of Independence or Washington’s Farewell Address, of course, documents officially authored and released by Congress don’t necessarily provide the same easy access to inquiry. Without a personal history or a clear literary personality to help ground what is being said and why, analyses of joint declarations, commerce regulations, or diplomatic instructions – the kinds of things a body like Congress spent a great deal of its time churning out – can easily become bogged down in minutiae. For a certain kind of scholar, this presents no problem at all – quite the opposite, in fact. For someone less interested in the finer details of collective decision-making in the late 18^th century Anglo-American world, however, Acts of Parliament and Acts of Congress, however historically significant, doubtless hold little, if any, appeal. That being said, there is admittedly a handful of what we’ll call “documents of state” from the era of the Revolution and the early republic whose importance to a comprehensive understanding of the American Founding can perhaps be said to outweigh their ambiguous authorship and narrow focus. The Articles of Confederation and the United States Constitution certainly fall within this category. As does the Land Ordinance of 1784, which essentially set the rules by which generations of Americans would push the boundaries of the nation further and further westward. And so does the Northwest Ordinance of 1787, which will be the topic of discussion over the next few weeks.

Essentially a replacement for, or a revision of, the aforementioned Land Ordinance, the purpose of the Northwest Ordinance was to codify the means by which the American territory west of the Appalachian Mountains – what might now be referred to as the Great Lakes region, or the Mid-West – was to be governed. The land in question had been ceded to the authority of Congress by the states that formerly claimed it (Massachusetts, Virginia, New York, and Connecticut), thanks in no small part to the advocacy of Virginia delegate Thomas Jefferson. Thus falling outside the authority of any of the state constitutions, and very shortly to become the destination of a sizeable tide of migration from the east, it fell to Congress to establish both a temporary government for the territory in question – the Northwest Territory, as it became known – as well as the rules by which the residents of said territory could organize and petition to divide themselves into a series of wholly new states. The resulting document took on a form that was effectively somewhere between a barebones state constitution and a rulebook for the expansion of the United States of America. It outlined a territorial government, set out the means by which public officials were to be elected or appointed, declared that certain fundamental rights were to be at all times observed, and demarcated the limits of federal authority.

While in some respects the Northwest Ordinance was a rather prosaic piece of federal legislation – concerned with inheritance law, and the franchise, and how much land certain public officials were entitled to – its implications for the future of the United States were anything but. The Northwest Territory, though intended in the fullness of time to be divided into as many as five states, was not a state in itself. Its government was not to be defined by a convention of its residents, but rather by Congress. Its governor was chosen by Congress, served at the pleasure of Congress, and pledged their loyalty to Congress. Likewise, while a territorial legislature was eventually intended to take up the task of making law for the residents therein, the laws which applied until that point were to be defined exclusively by Congress. As a result, the initial legal character of the Northwest Territory was bound to resemble many states in part, but no state in total. Furthermore, provisions of the Ordinance placed certain matters entirely out of the hands of the eventual residents of the territory. Land, for instance, was to belong exclusively to the Federal government until sold to private individuals, and in the interim was free from taxation.

These measures, along with various others, combined to make the Northwest Territory an American jurisdiction unlike any other then in existence. The authority of Congress held sway there like it did nowhere else in the United States. As a result, the states that were eventually carved out of it were bound to enjoy a different relationship with the federal government than did the original thirteen. They would be in every way equal under the law to their forebears – the terms of the Ordinance itself made that very clear – but unlike, say, Massachusetts, Georgia, or Rhode Island, the new states of the Northwest would be formed by people accustomed to living under federal authority. While certain of their laws, if not the majority, would be entirely theirs to define, others would be handed down by Congress. The federal government, for years to come after 1787, would be the single largest landowner, and would act as the first guarantor of the rights and liberties of territorial residents. These factors would doubtless leave a mark on the societies that took root, their understanding of the role that the national government was supposed to play, and their sense of what it meant to be American. Arriving at a moment of critical transition in the history of the United States, the Northwest Ordinance may therefore be fairly described as one of the central documents that defined America’s tumultuous adolescence in the 19^th century. By setting the terms by which new states would be settled and created, it arguably represented a break with the past and the beginning of a new era: before the Ordinance, the American states were the children of Britain, its history, and its political culture; after the Ordinance, they would be the children of Congress, its collective wisdom, and its vision for the future.

Before getting into the why and how, of course, a few things ought to be made clear. For example, it bears remembering that the federal government, as of the passage of the Northwest Ordinance in July, 1787, was embodied solely by Congress – that is to say, there was no President or national judiciary – and defined by the Articles of Confederation. Because the limitations of the Articles have been discussed at length in weeks past, it will suffice here to reiterate only a few points in brief. First and perhaps foremost, it should be understood that the Articles granted Congress almost no authority over the states that it was in a position to enforce, and that the various states accordingly governed themselves with a minimum of federal interference or oversight. As a result of this comparative weakness, men of talent and ambition who sought opportunities for public service tended to undertake careers in state politics rather than pursue appointment to Congress as one of their state’s delegates. Granted, there were exceptions – James Madison and Alexander Hamilton spring to mind – though these men were, as a rule, unusually nationalistic in their outlook and more focused then their peers on enhancing the power and dignity of the national government. Generally speaking, however, service in Congress between 1781 and 1789 was not seen as a particularly desirable posting. It certainly didn’t help matters that votes within Congress were tallied by state rather than by standing member. This meant that, rather than requiring a majority of the attending delegates to secure passage – a number which could range as high as ninety-one and as low as twenty-six – legislation needed the affirmative vote of only seven of thirteen states in order to be approved.

In spite of the sluggish pace at which it often worked, and the frequency by which the slim margin of victory led to proposed legislation being vetoed, Congress under the Articles managed to pass a handful of particularly meaningful policy measures during its relatively brief existence. The previously-mentioned Land Ordinance of 1784, brainchild of Thomas Jefferson, was one of them. Eager to secure and organize the settlement of the western territory newly acquired from Britain following the late Revolutionary War, Jefferson proposed that the lands claimed by the aforementioned states – many of which overlapped, were rooted in 17^th century colonial charters, and had been awaiting arbitration by Britain – be ceded to the national government. Thereafter, Congress would administer the land in question, survey lots and sell them at reasonable rates, give residents the mechanism to form new states, and ratify their eventual accession to the federal union. Within this framework, Jefferson held firm to five basic principles which he felt ought to underpin the continued expansion of the United States of America. The new states in question, his proposal first decreed, would forever remain a part of the federal union once they joined it, and would enjoy the same legal status as the existing states. Attendant to this equal standing, they would also be responsible for paying their share of the national debt and would be required to practice republican forms of government. Finally, and perhaps most controversially, neither slavery nor involuntary servitude were to be permitted in any of the new states after the year 1800. This final clause proved too radical for Jefferson’s fellow delegates, and they agreed to approve the measure only once it was dropped.

Despite the apparent willingness of the relevant states to cede their claims in the northwest to Congress – New York in 1782, Virginia in 1784, Massachusetts in 1785, and Connecticut in 1786 – and the willingness of Congress to approve and implement a plan for said territory’s organization, Jefferson’s Land Ordinance soon proved to be deficient in several respects. One of these was the relative inattention it paid to the needs of the temporary territorial government. Jefferson, the son of a surveyor and cartographer and something of a naturalist himself, characteristically put a great deal of thought into how the land in question was to be organized, and subdivided. In terms of government, however, he declared only that,

The settlers on any territory so purchased and offered for sale, shall either on their own petition, or on the order of Congress […] meet together, for the purpose of establishing a temporary government, to adopt the constitution and laws of any one of the original states [.]

For a territory chiefly populated by Native Americans eager to defend their ancestral homelands, and dotted with military outposts still garrisoned by British regular troops, this doubtless appeared to many observers as an alarmingly shallow means by which potential settlers could guarantee the safety and security of themselves and their neighbors. The tribal alliance known to history as the Western Confederacy – including, among others, members of the Iroquois Nations, Shawnee, Lenape, Miami, and Wyandot – would very shortly bear this out through a series of raids on American settlements beginning in the mid-1780s. Allied with the British forces still remaining in the region, and aided by the lack of any centralized response in what was nominally a region under the direct authority of Congress, the Confederacy was able to sustain their campaign of harassment – to the tune of over one thousand American lives – against only scattered resistance.

            Similarly alarming to critics of Jefferson’s proposal, though of a fundamentally different character, were the implications of the formula he recommended for dividing the territory (two hundred sixty thousand square miles in total) into individual states. By the terms he put forward, both in his initial plan and in the final draft, up to seventeen distinct sovereign entities were to be carved out of the surveyed and settled land for admission to Congress. This represented, for a United States of America still more a collection of nations than a nation in itself, an almost complete transformation of the emerging national character. Provided that all seventeen states Jefferson’s proposal made allowance for in fact joined the federal union, they would completely outnumber the original thirteen. From a nation defined in large part by its relationship to the Atlantic world, the United States would become dominated by Westerners, Western interests, and Western-oriented commerce. For states like Pennsylvania, New York, and Virginia – powerful, economically robust, and accustomed to throwing their weight around – such a fundamental realignment of the status quo embodied a significant loss of influence over the course of national affairs, such as it was. While this was an admittedly selfish motivation, particularly in light of the apparent altruism of the aforementioned cession of state territory to Congress, it was no less powerful, and managed to convince certain interests within the United States that further legislation was required to adequately dispose of the nation’s western territory.

Two subsequent pieces of Congressional legislation attempted to elaborate on Jefferson’s original proposal while still preserving the core tenets he held most dear. The Land Ordinance of 1785 – in which Jefferson also had a hand – greatly expanded upon the terms by which property in the Northwest  was to be assessed, plotted, and sold, and laid out the manner in which townships were to be organized. In some ways akin to a surveyor’s handbook, it combined elements of New England-style communal organization and Southern-style municipal autonomy into a community planning document that was distinctly American in its reasoned, blended, and flexible character. Because the Ordinance of 1785 still failed to address the political deficits of its predecessor, however, further discussions were called for. The result, two years later, was the formulation and passage of the Northwest Ordinance of 1787. Intended to provide, where earlier acts had failed, an explicit institutional framework for governing the territory in question, which established a body of law, provided for the appointing of officials, and established a clear formula for statehood and admission to the federal union, this final chapter in the western land saga represented a significant – if not altogether unprecedented – expansion of the authority of Congress over certain citizens and certain territory within the United States.

            This fact is particularly noteworthy when one considers that some of the great nationalist statesmen of the early American republic – men like Hamilton and Madison, Pennsylvania’s James Wilson, and Virginian Edmund Randolph – though serving in Congress as of the late 1780s, were not present in New York City during the drafting and passage (July 13^th, 1787) of the Northwest Ordinance. They, along with many sitting members of Congress, had instead been called away to Philadelphia to represent their respective states at a convention – meeting from May to September, 1787 – ostensibly intended to propose modifications to the Articles of Confederation. This convention of course ultimately produced the United States Constitution, a highly-centralized governing document heavily influenced by the political convictions of, among others, those men named above. The Northwest Ordinance must consequently be understood as the product of those moderate minds that either chose not to depart for Philadelphia or were not selected by their state to do so. That, in spite of not being among the nation’s premier advocates of restructuring or empowering the federal government, the delegates responsible for this third western land Ordinance still settled upon a plan which gave Congress more authority over how Americans in the demarcated territory lived their lives than the United States government had ever possessed anywhere is in truth rather remarkable. Indeed, one is tempted to conclude that as the Ordinance of 1785 represented a truly national consensus view of what community organization ought to look like in the nascent United States, so the Ordinance of 1787 may be fairly said to represent the contemporary federal government’s moderate consensus view of what the United States ought to look like politically and institutionally as it expanded further westward.

An Address to the People of the State of New-York, on the subject of the Federal Constitution, Part VII: Then, as Now

John Jay, as this series has hopefully made clear, was not above using mildly manipulative language or tweaking the emotions of his audience in order to gain the advantage in an argument. The stakes of the ratification debate in particular, as it unfolded across the winter of 1787/88, must have seemed very high to him, and so he doubtless felt justified in bending the truth now and then in order to achieve the outcome he felt was called for. That being said, elements of his 1788 Address indicate that there were certain non-ideological principles which he felt all parties involved in that debate ought to have paid heed to. Though the manner by which he attempted to remind his readers of these principles was certainly intended to benefit the Federalist cause, they themselves nevertheless seem to spring from a place of good sense and reason rather than narrow partisanship. Their invocation by Jay would consequently seem to indicate that the ratification debate, in addition to essentially heralding the birth of a national partisan culture in America, was not so consumed by factionalism as to deny the importance of certain fundamental moral or philosophical values. As a result, however tempting it might be to discount anything Jay had to say in his 1788 Address by recalling his aforementioned willingness to make use of plainly manipulative rhetorical tactics, certain of the reflections he set forth therein are as worthy of consideration now as they were when first set down in print.

Consider, for example, his attempts in paragraphs eight and thirty-four to remind his readers that no one, Federalist or Anti-Federalist alike, was in a position to declare with certainty what the outcome of adopting the proposed constitution would ultimately be. This was, of course, in spite of the fact that both factions had adopted a tone of utter certitude when addressing the matter in print and public address. Critics of the Constitution, by the spring of 1788 when Jay’s Address was published, had expended no small amount of time and effort in decrying its flaws, ascribing to its creators all manner of sinister motivation, and painting an exceedingly bleak portrait of tyranny and corruption in the guise of a strengthened national government. Supporters of the Constitution had conversely portrayed it as being much called-for by the deficiencies of the Articles of Confederation, drafted by noble and trustworthy men in a spirit of utter selflessness, and destined to usher in an era of stability and prosperity the likes of which Americans had dreamt of since 1776. Though Jay was very much a partisan in the latter camp, and took no pains to hide it, he evidently possessed wisdom enough to admit that on some questions the truth of the matter could only ever be discerned through practical experience and not idle prognostication. “Experience is a severe preceptor,” he declared in the eighth paragraph of his Address, “but it teaches useful truths, and however harsh, is always honest–Be calm and dispassionate, and listen to what it tells us.” While clearly intended to further Jay’s case in favor of the proposed constitution – the “experience” in question was meant to refer to the weaknesses of Congress under the Articles – the idea that certain important questions resisted speculation favored neither the Federalist nor the Anti-Federalist position.

Jay advanced this same basic conviction again in the aforementioned thirty-four paragraph of his Address. Admitting that the fitness of something as complex as the proposed constitution to govern the United States could only really be determined by actually putting it into practice, it thereby stood to reason that the only sensible course of action was to adopt the thing and see what happened. If the document proved itself adequate, after an agreed-upon trial period, to the economic, diplomatic, and military needs of the American people, all parties concerned would no longer have need to quarrel. The Federalist would have made their case, and the concerns of the Anti-Federalists would have been allayed in the most convincing way possible. If, however, the proposed constitution proved itself inadequate – if the condemnations of its critics were borne out by practical experience of its inability to govern the United States in a manner consistent with basic republican values – its strongest advocates would be given no choice but to admit that their hopes had been misplaced.

In 1788, there was almost certainly no way of knowing which result was more likely. “Experience will better determine such questions,” Jay avowed, “than theoretical arguments [.]”  That he nevertheless endorsed this course of action – that he was seemingly determined to let the chips fall where they may – speaks to his faith in the ability of the Constitution to prove its worth, as well as his evident conviction that some elements of public policy were too complex or too important to approve or condemn in theory alone. Whatever its flaws, the Constitution represented an earnest attempt to right the faltering course of the American republic. Rather than condemn it for failing to address every possible contingency and concern – denouncing it for failing at perfection – Jay requested his countrymen instead put it though it paces and reserve judgement until all parties could speak from a place of practical experience. While not always possible or preferable – some policy questions indeed call for decisive action – this course of action was, in 1788, and remains, over two centuries later, viable, and indeed often necessary.   

In addition to this paean to the virtues of experience over theory, Jay also gave notice in his 1788 Address that there was a principle underpinning the ratification debate which he and his cohorts would have done well to remember – i.e. that victory in a political debate was less important than allowing the American people to decide for themselves what manner of government best met their needs.  He expressed as much, if not quite so explicitly, in the previously-mentioned thirty-fourth paragraph. “You cannot but be sensible,” he explained to those who feared for the rights of their countrymen in the event that the Constitution was adopted,

That this plan […] will always be in the hands and power of the people, and that if on experiment, it should be found defective or incompetent, they may either remedy its defects, or substitute another in its room.

While, again, it cannot be denied that this argument directly aligned with Jay’s overt Federalist scruples – in that it made critics of the proposed constitution appear somewhat alarmist in their manifest apprehension – there remains an element of faith (for lack of a better word) at the core of his reasoning that should not be so easily dismissed. Clearly he believed that the proposed constitution was what the United States required to finally and permanently assert itself as an independent, federal republic. He had argued in its favor, and against its detractors, and would continue to do so. And yet, by stating that it ultimately fell to his countrymen, if they perceived the Constitution to be in any way deficient, to “remedy its defects, or substitute another in its room,” Jay evinced an even stronger belief in the inalienable sovereignty of the American people.

            In so doing, he effectively signalled to the readers of his 1788 Address, intentionally or unintentionally, that the debates surrounding the ratification of the proposed constitution – replete with high drama, colorful characters, and caustic rhetoric – were at bottom less important than the fundamental conviction that underpinned them. Namely, that the citizens of the United States of American possessed the unquestionable right to formulate, modify, or abolish the government under which they lived. The role to be filled by men like him – jurists, statesmen, and scholars – was undeniably an important one, but in essence academic next to the duty and the privilege they shared with the much greater numbers of farmers, soldiers, merchants, and artisans in validating or disavowing whatever form the American republic happened to take. Consequently, while it indeed fell to the men selected to participate in the Philadelphia Convention, or elected to attend the state ratifying conventions, to debate the merits of checks and balances, or bicameralism, or an independent judiciary, the final judgement always and ultimately resided with the American people. If they liked the Constitution, they would keep it. If they didn’t like it, they would replace it. And if they didn’t like the government that came next, they would replace that too. This power, fought for and suffered for through eight blood-soaked years, set them apart from almost any other people on the planet – it was beyond argument, irrefutable, and lay at the very core of the Revolution and of American republicanism.

            By attempting to remind his countrymen of the primacy of this most essential principle, it should not necessarily be understood that Jay was entirely discounting or dismissing the importance of the ratification debates. The state conventions were the most practical way, under the circumstances, to determine whether or not the American people approved of the Constitution. They permitted members of diverse communities across the United States to voice their concerns, see their fears allayed or confirmed, and have their votes counted. A referendum, voted upon by the general population, was not necessarily a reasonable alternative because it would have discounted the importance of the states – something advocates of a strong national government were careful to avoid – and it would not have necessarily allowed the supporters and critics of the proposed constitution to engage in the kind of systematic debate the state conventions ultimately played host to. Jay was very much aware of this, of how important it therefore was to achieve a victory at the New York state convention, and the potentially invaluable role he stood to play in achieving the same. Were it otherwise, he doubtless would not have wasted the effort in campaigning for a seat or writing polemics. In the end, however, as his 1788 Address appears to attest, he knew that the people at large would determine the value of the Constitution for themselves.

            In this sense, Jay’s reflection that the Constitution would always be “in the hands and power of the people” perhaps stands as a gentle rebuke, against himself and his opponents alike, not to lose sight of the reason a framework for a new national government was being debated in the first place. It was not, despite the behavior of some of the more self-possessed and self-confident members of the various states conventions, in order to give well-read and well-spoken men an opportunity to speak well of the things they had read. Nor was it intended as a means of reigniting or settling existing partisan disputes. Rather, its purpose was to allow the various states, their respective communities, and the American people in general an opportunity to determine for themselves how they were to be governed. This was – it cannot be stated enough – an occasion completely without precedent in the history of Western civilization. Though Jay was no less guilty than any of his countrymen of sometimes paying more attention to the contest than the context – to the fight, rather than what was being fought for – paragraph thirty-four of his 1788 Address appears to demonstrate a degree of self-awareness on his part this is absolutely worthy of commemoration.

Consider: the political process is important to how the United States of America functions. It is the framework through which ideas are tested, become policy, and become law. Debate – the open and rigorous airing of disagreements – is an invaluable part of this progression. But as the scope and power of the federal government has increased, and those involved have become ever more invested in their personal and partisan victories and defeats, the spirit of debate in the American republic has periodically overpowered its core rationale. The Constitution, to quote Jay yet again, “will always be the hands and power of the people.” As true as it was when applied to the debate surrounding the ratification or rejection of that hallowed charter, no less is it true today. The purpose of government in the United States is to satisfy the needs and desires of the people. It is for this reason that they send representatives to their state capitals and to the national capital. It is for this reason that they organize themselves into centralized parties. And it is for this reason that in the winter of 1787/88 they chose from among their neighbors men to vote on their behalf in accepting or rejecting the proposed constitution. John Jay, evidence to the contrary notwithstanding, knew this to be true, and attempted to remind his countrymen of the same. Here at the dawn of the 21^st century, we would do well to remember it, too.  

This spirit of apparent concern for the efficacy of public debate in the United States was also expressed in the twenty-third paragraph of Jay’s 1788 Address. Therein, he avowed that it had been impossible for the delegates to the Philadelphia Convention to draft a new federal charter that would, “Exactly quadrate with the local policy and objects of every State [.]” This conclusion had arisen from a number of realizations, a summary of which he then listed. Because they are so concisely phrased, and because they will shortly prove relevant to the forthcoming discussion, they will be excerpted here in full:

[The delegates] were sensible that obstacles arising from local circumstances, would not cease while those circumstances continued to exist; and so far as those circumstances depended on differences of climate, productions, and commerce, that no change was to be expected. They were likewise sensible that on a subject so comprehensive, and involving such a variety of points and questions, the most able, the most candid, and the most honest men will differ in opinion. The same proposition seldom strikes many minds exactly in the same point of light; different habits of thinking, different degrees and modes of education, different prejudices and opinions early formed and long entertained, conspire with a multitude of other circumstances, to produce among men a diversity and contrariety of opinions on questions of difficulty.

Taking these facts into consideration – intractable and inextricably bound up with the physical reality of the diverse and extensive American republic – Jay related to his readers that the delegates therefore settled upon the only course reasonably available to them if they wished to make any real progress towards resolving the crisis they perceived unfolding in America. “Liberality,” he wrote, “as well as prudence, induced them to treat each other’s opinions with tenderness, to argue without asperity, and to endeavor to convince the judgement without hurting the feelings of others.” Thus possessed by the spirit of compromise, the attendees of the Philadelphia Convention were able to successfully bring forth a document most likely to meet with the approbation of the largest portion of their countrymen.       

            Though ostensibly offered as an explanation of how and why the proposed constitution looked the way it did, Jay doubtless intended this insight into the thought process of the Philadelphia delegates to also act as an exemplar for he and his cohorts to aspire to. As the Framers of the Constitution had mastered their impulses, embraced some degree of compassion for one another’s point of view, and attempted to forge a consensus that gave sole advantage to no community, state, or class of men, so the participants in the ratification debate ought to have attempted the same. After all, the considerations they faced were no different from those that had occurred in Philadelphia. Though residents all of the same state, they represented different districts, communities, and commercial interests. They were likewise differently educated and socialized, and came from different subcultures – the planters of the Virginia Tidewater as opposed to the farmers of the Piedmont, for example, or the urban artisans of Philadelphia against the hardscrabble homesteaders of Western Pennsylvania. And if that weren’t enough to contend with, they were composed, as any assemblage humanity, of different kinds of men, given to thinking about the same things in a manner unique to their innate sensibilities. The only solution to the intractable conflict that would result if every one of these men took their personal convictions as the sole measure of what was right was therefore the same in Poughkeepsie, and Boston, and Richmond as it had been on Philadelphia: compromise.

Or perhaps Jay phrased it better. “Liberality,” he recounted, had won the day at the Philadelphia Convention, and “prudence,” and “tenderness.” Whereas “compromise” or “consensus” would seem to denote only a desired effect or result, the words Jay settled on seem to carry with them a sense of mutual respect and fellow-feeling. It was not only out of a need for some way forward that flexibility was called for, his conclusion seemed to denote, but an understanding that the individuals involved both in crafting and assessing the Constitution proceeded from honest motives and had honest reasons to disagree. Because the moral equality of mankind – with, it cannot be denied, some notably glaring exceptions – was also one of the core concepts of the American Revolution, it would seem to have followed that every American, not least of which every American participating in the ratification debate, owed to their countrymen the benefit of the doubt in matters of disagreement. If each and every one of them was innately and spiritually equal, what need was there for status-seeking or one-upsmanship? If American independence had been a collective effort – what Washington later described as “The work of joint counsels, and joint efforts, of common dangers, sufferings, and successes” – behaving towards each other in anything less than a gracious manner would accordingly have seemed the height of ingratitude. Better, then, to act from a place of fellowship, and cooperation, and deference. The effort would doubtless proceed more smoothly, and perhaps a few minds might even be changed.

            There was, of course, a practical dimension to this remonstrance of Jay’s. On subjects of great complexity, he asserted in the abovementioned twenty-third paragraph, “The most able, the most candid, and the most honest men will differ in opinion.” Whatever disagreements arose, then, should not have been immediately traced to personal malice or invidious intent, but rather treated as the inevitable consequence of diverse opinions converging on complex issues. Within the context of the ratification debate – involving about as complex a subject as any involved had likely experienced – this reflection was notably and specifically relevant. If any progress was to be made, either in favor of or against the proposed constitution, the instinctual resort to invective would need to be laid aside so as not to cloud what was already a labyrinthine issue. Then again, when one considers the essential nature of American republicanism – wherein abstract and practical concepts alike were to be discussed at length by elected officials in the interest of hashing out public policy – perhaps Jay’s call for tolerance and broadmindedness applied more broadly than he admitted. If the United States – as a federal entity, and a collection of individual republics – was going to survive beyond its late 18^th century infancy, its citizens were going to have to grow accustomed to disagreeing, sometimes vehemently, on matters of great complexity and great importance. The Revolution – which gave rise to loyalty oaths and neighbor-on-neighbor violence, and during which cooperation in Congress benefited from a common British enemy – had perhaps not adequately prepared them for this, but their theoretical devotion to public debate doubtless made it imperative that they learn very quickly.      

It must of course be admitted that Jay almost certainly intended the reflections and remonstrances cited here from his 1788 Address to apply only to the ongoing debate over the ratification of the proposed constitution. He was a wise man, and highly intelligent, but he was no more a prophet than any of his contemporaries. He could not have predicted that the form of government he was advocating would endure for over two centuries – indeed, some delegates to the Philadelphia Convention remarked that they would be lucky if thing lasted beyond twenty years – and it would therefore be improper to suggest that his words were intended to speak to and advise generations yet unborn. Nor would it be entirely accurate to state that every meaning this series has extracted from his words was that which he plainly intended to convey. That being said, and as has hopefully become clear by now, history as in large part an interpretive discipline. Perhaps Jay did not set out to argue that political debate in the United States ought to be understood as a means rather than an end, but his phrasing, choice of words, and general tone effectively embody that value. Inherent in what Jay chose to communicate to his fellow New Yorkers in the spring of 1788 was a whole host of unspoken assumptions, shared experiences, and cultural mores. Teasing these out, with the aid of critical analysis and research, is one of the principle tasks of the historian. The conclusions that result are not always apparent, and were often unintended by the subject in question. But they are nonetheless valid if they are supported by fact, and context, and logical inference.

Doubtless Jay did not intend to draw overmuch attention to the idea, but it is clear enough from his 1788 Address that he believed certain areas of public policy were too complex to leave to debate and conjecture alone. Upon reflection, this would seem a very sound axiom. The flaws apparent in some systems or frameworks may prove harmless when put into practice, while certain other aspects, deemed inoffensive on first blush, may show themselves to be anything but once things are permitted to take their course. “Experience is a severe preceptor,” Jay accordingly noted, “but it teaches useful truths […] and is always honest.” Perhaps not every public act bears up under this logic – the harm to be caused by some is more plainly seen – but there are always those instances in which trial and error is the most viable way forward, if not also the most instructive. It is also fairly apparent that Jay held true to the conviction, in spite of lapses to the contrary, that the primacy of public debate in the United States did not give license to the participants in the same to forget either their obligations to their constituents or to each other. This, too, appears well-founded. If the United States truly is, as has been remarked countless times over the last two centuries, a nation of laws and not men, then it stands to reason that great care ought to be taken in creating and maintaining the proper environment in which said laws can be discussed. There can be no room for egos, no room for petty jealousies, and no primacy given over to party agendas or personal ambitions. The public good should be the only measure of value, and disagreements treated with tolerance and forbearance. For, as every representative of the American people owes it to their neighbors to keep their wellbeing foremost in their mind, so do they owe one another the courtesy and respect befitting the institution they are a part of and the duty they are about.

Anyway, that’s my take. By all means, decide for yourself: http://oll.libertyfund.org/titles/ford-pamphlets-on-the-constitution-of-the-united-states-1787-1788