The Northwest Ordinance of 1787

The Northwest Ordinance of 1787

The one achievement for which the Article of Confederation Congress is remembered is the Northwest Ordinance, which created the first organized territory of the newly independent United States, a territory bounded by the Ohio, the Mississippi, the Great Lakes, and the western boundary of Pennsylvania.

The Ohio (as part of the Mississippi river system) was the key to the heartland. But the state of Maryland refused to sign the articles unless assured that all the other states with claims to lands west of the existing states would cede them to the federal government. These claims were not trivial. Virginia’s claim included virtually the entire territory, but other states also had overlapping claims extending to the Mississippi, including Georgia, the Carolinas and even New York, Massachusetts and Connecticut. (An echo of these earlier claims is the part of northern Ohio still sometimes referred to as the Western Reserve.)

The states did cede their claims, which made the northwest territory the nation’s public domain. As passed and ratified by the 13 States, the original northwest ordinance was less an act of a central government than a treaty among sovereign states. In its language: “the following articles shall be considered as Articles of compact between the original States and the people and states in the said territory, and forever remain unalterable, unless by common consent….”

Adopted under the new Constitution and signed into law in 1789 by President Washington, it became so fundamental in shaping the growth of the new nation that we require an effort of imagination, today, to see how things might have been in its absence. We take for granted that the nation’s eventual expansion across the continent would be by the process spelled out by the ordinance, but suppose the original 13 states had decided to hold any new territory perpetually in common, perhaps as a politically dependent area that would be, in effect, an internal colony? Suppose one or all of the original 13 states had attempted to expand into some or all of the new land? Surely any such attempts would have resulted in rebellion, sooner or later, but how nice that matters took a different course.

More to the point, though, are other specific provisions of the ordinance that shaped the territory in ways we take for granted. Among the provisions of the final (of three) ordinance:

  • The territories were to be administered directly by Congress, rather than by any of the states. Unsettled lands became part of the federal government’s public domain, rather than part of any existing state’s territory.
  • Navigable waters were designated as “common highways and forever free” for the original inhabitants, the citizens of present and future states.
  • Once a given territory had acquired a population of 60,000 citizens, it would become eligible for statehood on equal status as existing states.
  • Each territory would be divided into gridded townships, so that the land could be surveyed and then sold in an orderly manner, with section 16 of each township reserved to finance the creation of schools in the district.
  • Slavery was prohibited within the territory.

All this had consequences. The Northwest Ordinance (and succeeding legislation) established legal rights, including habeas corpus, the right to a trial by jury, limitations on fines, and a prohibition of ex post facto laws and of cruel or unusual punishment. It established religious freedom, and encouraged education in the following words: “Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.” Much of what we came to think of as essentially American were fixed and then imitated by the ordinance.

In speaking of consequences, we must remember the consequences of the path not taken. One provision of the ordinance states, presumably with a straight face, and possibly with sincere intent: “The utmost good faith shall always be observed towards the Indians; their lands and property shall never be taken from them without their consent; and, in their property, rights, and liberty, they shall never be invaded or disturbed, unless in just and lawful wars authorized by Congress; but laws founded in justice and humanity, shall from time to time be made for preventing wrongs being done to them, and for preserving peace and friendship with them.”

Had this provision been adopted in spirit as it was in legislation, perhaps the wars with Blue Jacket and Little Turtle might have been avoided. Just possibly the long-term coexistence that George Washington envisioned might have come into being. Probably not: Chances are the Indians still would have objected to the expropriation of land they considered theirs. But we’ll never know.

On the other hand, prohibiting slavery north of the Ohio set the stage for the competition between slave and free states that would be arbitrated by the Missouri Compromise, aggravated by the spoils of the Mexican War, broken open by Kansas-Nebraska, and finally settled in blood.

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