PETER S. ONUF
From Constitution to Higher Law:
The
Reinterpretation of the Northwest
Ordinance
The Northwest Ordinance is one of the
most celebrated texts in
American constitutional history. During
the state-making era in the
Old Northwest Territory, it was also a
controversial document.
Treated reverently by some speakers and
writers, it was dismissed
with contempt by others. Promoters
claimed that the Ordinance was
a constitution for the territories and
future states of the Northwest;
critics insisted that it had no more
constitutional significance than a
blank piece of paper. Celebration and
denigration developed in di-
alectical relation. On the same day in
February 1835, Rep. John
Quincy Adams of Massachusetts called it
a solemn compact, "firm as
the world, immutable as eternal
justice," while Rep. John Reynolds
of Illinois dismissed it as
"nothing more than an ordinary act of Con-
gress." Do not be deceived by
names, Reynolds warned: "Its as-
suming to itself the high-sounding
titles of 'ordinance,' and 'com-
pact,' does not make it so."1
This essay will explore the development
of these divergent inter-
pretations of the Northwest Ordinance.2
The significance of the Or-
Peter S. Onuf, Assistant Professor of
History at Worcester Polytechnic Institute, is
currently a National Endowment for the
Humanities Fellow at the American Antiquari-
an Society, Worcester, Massachusetts. He
would like to acknowledge helpful criticism
by Robert R. Dykstra and Cathy Matson.
An earlier version of this paper was pres-
ented at the October 1984 program
"Toward the Bicentennial of the Northwest Ordi-
nance: A Public Conference," held
at the Ohio Historical Center and sponsored by
the Ohio Historical Society with the
support of the Ohio Humanities Council.
1. Adams speech of Feb. 9, 1835, and
Reynolds speech of same day, Register of
Debates in Congress, 13 vols. (Washington, D.C., 1824-37), 23 Cong., 2 Sess., 1255,
1252-53.
2. The historiography is discussed in
Ray Billington, "The Historians of the
Northwest Ordinance," Illinois
State Historical Society Journal, 40 (December, 1947),
397-413; Philip R. Shriver,
"America's Other Bicentennial," The Old Northwest, 9 (Au-
tumn, 1983), 219-35; and James David Griffin,
"Historians and the Sixth Article of the
Ordinance of 1787," Ohio History, 78
(Autumn, 1969), 252-60. The best introduction to
6 OHIO HISTORY |
|
dinance is to be found in the vigorous and often acrimonious dis- course that flourished around its various controversial provisions. Attention first focused on the clauses establishing a system of tempo- rary government, later shifting to the supposedly perpetual "com- pact" articles that set new state boundaries, promised statehood, and-most controversial of all-forever excluded slavery. In seeking to interpret these key passages in the text of the Ordinance speakers and writers debated its authors' intentions as well as their own obli- |
Northwest Ordinance
7
gation to abide by them. Could
self-government be reconciled with
the "colonial" system
established by the Ordinance, and were state
sovereignty and state equality
compatible with the putatively consti-
tutional limitations imposed by the
compact articles?
Controversy over the meaning of the
Ordinance eventually worked
to undermine its standing as a
constitutional text. Even those who
sought to uphold its provisions had to
appeal beyond the document
-to voters in the territories and new
states or to Congress-for sup-
port. Implicitly, they conceded the main
contention of their oppo-
nents, that the continuing authority of
the Ordinance depended on
the will of the sovereign people or
sovereign Congress. At the same
time, however, through their constant
reading and rereading of the
Ordinance, the people of the Old
Northwest kept their own and the
nation's founding fresh before them. In
this way, by shaping continu-
ing discussion over first principles,
the Ordinance functioned as a
constitutional text, enabling
Northwesterners to read into the exigen-
cies of their own pioneer situation a
powerful analogy of political crea-
tion drawn from the founding fathers
themselves. And for those
with dramatic visions of a wilderness
transformed, the Ordinance
provided not only a practical
"constitutional guide" of the route to
statehood, but also the promise of
growing population, prosperity
and power.3
I
There shall be formed in the said
territory, not less than three nor more than
five States . . . whenever any of the
said States shall have 60,000 free inhab-
itants therein, such State shall be
admitted, by its delegates, into the Con-
gress of the United States, on an equal
footing with the original States in all
respects whatever, and shall be at
liberty to form a permanent constitution
and State government ....-Article V.
Statehood agitation in the area that was
to become Ohio was close-
ly connected with opposition to the
territorial government under Gov.
Arthur St. Clair. St. Clair, "with
British & princely ideas," was seen
as a throwback to the old colonial
governors.4 The territory was de-
the history of the Ordinance is Jack E.
Eblen, The First and Second United States Em-
pires: Governors and Territorial
Government, 1784-1912 (Pittsburgh,
1968).
3. On the constitutional standing of the
Ordinance see Peter S. Onuf, "A Constitu-
tion for New States," paper
delivered at Claremont, Calif., February 1984, 3-7. The
quotation is in a letter from Nathaniel
Massie to James Madison, [ca. Jan. 30, 1802],
D.M. Massie, Nathaniel Massie, a
Pioneer of Ohio. Sketch of his Life and Selections
from his Correspondence (Cincinnati, 1896), 184-87.
4. Address by Meeting at Columbia, d.
Feb. 1, 1796, printed in Centinel of the
8 OHIO
HISTORY
scribed as a "colony" with a
"government, which no man with the
blood of an American in his bosom can
contemplate with pleasure."5
During the first phase of territorial
government under the Ordinance,
the governor and three judges exercised
complete authority. Only
when the number of free adult males
reached 5,000 would a general
assembly be convened, and even then the
federal appointees re-
tained preponderant power. As Thomas
Worthington, the leader of
Ohio's campaign for statehood, wrote in
1801, the "present arbitrary
government [was] better suited for an
English or Spanish colony than
for citizens of the United States."6
Several criticisms merged in the attacks
on the St. Clair regime.
Statehood proponents emphasized the
"degradation" of settlers
from the status of "citizens"
in their states of origin to "subjects" un-
der St. Clair's "monarchic
system."7 They also chafed at the gov-
ernor's extensive prerogatives, most
notably his unqualified veto
power over the territorial legislature,
which itself was a belated and
halting step toward local
self-determination (its first meeting was in
1799). The "subject" settlers
confronted the "encroaching usurper"
without any constitutional check, or
"controling power."8 The de-
graded and oppressed condition of the
individual thus recapitulated
that of the territory at large under St.
Clair's "colonial, oppressive
and unequal government." William
Goforth epitomized the territory's
situation in a letter to Pres. Thomas
Jefferson in January 1802: its poli-
ty was a "true transcript of our
old English Colonial Governments,
our Governor is cloathed with all the
power of a British Nabob."9
North-Western Territory (Cincinnati), Feb. 20, 1796. On the Ohio statehood
movement
see John D. Barnhart, Valley of
Democracy: The Frontier versus the Plantation in the
Ohio Valley, 1775-1818 (Bloomington, 1953), 138-60; Randolph Chandler Downes,
Frontier Ohio, 1788-1803 (Columbus, 1935); and Alfred Byron Sears, Thomas
Wor-
thington: Father of Ohio Statehood (Columbus, 1958). The best account of factional
alignments in early Ohio is in Donald J.
Ratcliffe, "The Experience of Revolution and
the Beginnings of Party Politics in
Ohio, 1776-1816," Ohio History, 85 (Summer, 1976),
186-230.
5. "A Citizen of the North Western
Territory," Scioto Gazette and Chillicothe Ad-
vertiser (Chillicothe), Nov. 27, 1800.
6. Worthington to Abraham Baldwin, Nov.
30, 1801, reprinted in Sears, Worthing-
ton, 64.
7. [Edward Tiffin] "To the
Inhabitants of the North-Western Territory," Scioto
Gazette, Sept. 24, 1801; William Ludlow to Tiffin, Dec. 22.
1801, excerpted in Downes,
Frontier Ohio, 211.
8. "Countryman," "To the
Citizens of the North-Western Territory," Scioto Ga-
zette, Feb. 12, 1801.
9. Goforth to Jefferson, Jan. 5, 1802,
Clarence E. Carter and John Porter Bloom,
eds., Territorial Papers of the
United States, 28 vols. to date (Washington, D.C., 1934-),
3:198-201.
Northwest Ordinance
9
What does all this overheated rhetoric
signify? Certainly the old
Federalist St. Clair-who was so often
absent or, it was rumored,
drunk-earned at least some of the abuse.
St. Clair himself dis-
counted the opposition. "I have but
five Enemies in the Territory,"
he wrote shortly after Goforth had
called him a "Nabob." These
Republican leaders, with their partisan
bombast, may have "mis-
led" a few other impressionable
inhabitants ("who probably never
saw me").10
St. Clair was right to question the
extent and depth of popular hos-
tility to his administration, but
complaints about the territory's "co-
lonial" condition did strike a resonant
chord. Anticolonial-and
pseudo-Revolutionary-rhetoric was to
become a standard adjunct
of statehood movements throughout
American territorial history,
even where more popular territorial
governors supported the change.
Use of the term "colony" expressed
the chronic ambivalence of
frontier communities toward national
authority. Comparisons be-
tween the Northwest Territory and the
American colonies before the
War of Independence called up the
conventional image of tyranny
and bad government-the antitype of the
new republics. Yet they
also suggested a flattering
identification between the future new
states and the original thirteen. After
all, the Atlantic states had
grown powerful and virtuous through
protracted colonial apprentice-
ships. The territories would pass
through similar stages of develop-
ment.
The developmental model, in fact, proved
to be central to the very
idea of "territory." Territory
suggested both "colony"-the begin-
ning point-and "state"-the
end. An American colony became a
state while being administered as a
territory. A territory that was not
ready for statehood was still a colony.
"Colony" therefore did not
necessarily have negative connotations.
The analogy of childhood
came easily to antistatehood publicists,
as a writer in the Ohio Ga-
zette exemplified:
Is a young man in a degrading situation
under his father or his guardian be-
fore he becomes 21 years old? are not we
in a comparative situation with
him? at a certain age he is admitted to
choose his guardian, so we in a mid-
10. St. Clair to James Ross, Jan. 15,
1802, William Henry Smith, ed., Life and Public
Services of Gen. Arthur St. Clair, 2 vols. (Cincinnati, 1882), 2:555-57. Goforth was not
included in this list. On St. Clair see,
in addition to sources cited in note 5 above,
Beverley W. Bond Jr., "An American
Experiment in Colonial Government," Mississippi
Valley Historical Review, 15 (September, 1928), 221-35, and Alfred B. Sears,
"The Po-
litical Philosophy of Arthur St.
Clair," Ohio Historical Quarterly, 49 (January-March,
1940), 41-57.
10 OHIO HISTORY
dle state are qualified to choose
members of assembly, to make laws for our
protection and government, without whose
consent no laws can be made.11
Such opponents of statehood urged that
the territory remain in a po-
sition of dependency until sufficiently
mature to assume the responsi-
bilities of political adulthood.
Early in 1801, an antistatehood meeting
at Marietta explained why
further growth and development were so
important. The territory
was still a "mixed mass of people,
scattered over an immense wilder-
ness, with scarcely a connecting
principle." Deficient in population,
wealth, and education, the territory was
hardly prepared to function
as an independent political community.
Statehood required a suffi-
cient density and contiguity of
settlement, the surplus wealth to sup-
port good government, and an educated
electorate. The people of the
territory and their representatives
would have to cope with "ab-
struse questions of Government and
policy"; they would also have to
achieve an adequate awareness of the
needs and interests of the en-
tire community. The growth and spread of
population made possible
the "connections" that in turn
promoted political development.12
The Northwest Ordinance, with its
provisions for progression
through stages from colonial dependency
to independent statehood,
embodied this developmental dynamic.
Agitation for statehood-
that is, for accelerating this
progress-thus did not imply rejection of
the Ordinance, even though statehood
proponents attacked the ter-
ritorial government created under its
authority. The Ordinance fully
authorized the movement toward statehood,
clearly mandating the
automatic self-destruction of the
temporary governments it had
called into being. The document
therefore resembled an old colony
charter, creating vested rights in the
grantees and limiting the power
of the grantor. But an important
difference remained. This "charter"
for America's colonies guaranteed them
that they would attain the
same independence and equality for which
their predecessors had
had to fight a bloody revolution.13
11. "The first EPISTLE of PAUL ..
.," Ohio Gazette (Marietta), Sept. 28, 1802. For
a discussion of the developmental
premises of American territorial policy see Peter S.
Onuf, "Territories and
Statehood," in Jack P. Greene, ed., Encyclopedia of American
Political History (New York, 1984) and Robert Berkhofer, Jr., "The
Northwest Ordi-
nance and the Principle of Territorial
Evolution," in John Porter Bloom, ed., The Amer-
ican Territorial System (Athens, Ohio, 1973), 45-55.
12. Meeting at Marietta, Jan. 12, 1801, Western
Spy (Cincinnati), Feb. 11, 1801; St.
Clair to Paul Fearing, Dec. 25, 1801,
Carter, ed., Territorial Papers, 3:186-89. For a
discussion of the address see Return J.
Meigs to Thomas Worthington, Jan. 15, 1801,
Massie, Life of Massie, 166-68.
13. On the significance of the
"charter" idea see Peter S. Onuf, The Origins of the
Northwest Ordinance
11
Functioning as a kind of territorial
"constitution," the Ordinance
thus bridged the gap between dependent
colony and independent
state: attainment of statehood justified
the territory's temporary colo-
nial condition. The provisions for
temporary government authorized
the (equally temporary) degradation of
citizen to state-less subject,
but the compact articles guaranteed that
the process would reverse
itself as the territory crossed
successive population thresholds.
St. Clair defined the colonial starting
point of the ascent to state-
hood in a 1795 letter to Treasury
Secretary Oliver Wolcott. "The Ter-
ritories are not States," he wrote,
"or the inhabitants would be enti-
tled to the same privileges, and
participate in all the advantages
equally with the other States." The
Northwest Territory was a "de-
pendent colony" without
representation in the federal Congress or
even, at this point, in a local
legislature. Therefore, it followed that
settlers in the territory "ceased
to be citizens of the United States
and became their subjects."14 St.
Clair's "subjects" bridled at this
terminology, but they could not argue
convincingly that they were
true citizens. Full citizenship
inevitably depended on statehood.15
This rhetorical dilemma is apparent in a
1797 "Address to the Citi-
zens" of the Northwest calling for
statehood. Because of rapid popu-
lation growth, "the happy period is
drawing nigh, when the citizens
of this Territory shall again be
re-instituted into those rights and priv-
ileges which they formerly enjoyed as
citizens."16 The two uses-
and different meanings-of
"citizen" in the same sentence reveal the
writers' sense of their dynamic
political condition: the attainment of
true citizenship was immanent in the temporarily defective
citizen-
ship claimed by territorial
"citizens." In contrast, St. Clair's language
had looked back, not forward. By
denominating inhabitants "sub-
jects" or "in a diminutive way
. . . Settlers," he emphasized the be-
ginning rather than the culmination of
the territorial condition.17
Federal Republic: Jurisdictional
Controversies in the United States, 1775-1787 (Phila-
delphia, 1983), 24-29, and Onuf,
"Constitution for New States," 5-7.
14. St. Clair to Wolcott, [July? 1795],
Smith, ed., Life of St. Clair, 2:378-83. See also
St. Clair to Wolcott, July 24, 1795,
ibid., 383-85.
15. James H. Kettner, The Development
of American Citizenship, 1607-1870 (Chapel
Hill, 1978) is the best authority on
this question.
16. Address d. Cincinnati, Dec. 6, 1797,
reprinted in Downes, Frontier Ohio, 183-84;
see also circular letter, Dec. 30, 1797,
Julia Perkins Cutler, ed., Life and Times of Ephra-
im Cutler (Cincinnati, 1890), 319-20. A toast at the July 4,
1802, celebration at Colum-
bia, Hamilton Co., suggested a solution
to this impasse: celebrants drank to "The citi-
zens of the North Western Territory-may
they soon pass into the ranks of freemen,"
Western Spy, July 10, 1802.
17. Meeting at Columbia, Centinel of
the Territory, Feb. 20, 1796.
12 OHIO HISTORY
Despite their disagreement over what to
call the people of the
Northwest, however, St. Clair and his
opponents agreed that the Or-
dinance guaranteed the ultimate
transformation from colony to state.
But St. Clair, as territorial governor,
was more interested in under-
scoring the authority of the colonial
government authorized by the
Ordinance. His opponents, meanwhile,
focused on the compact arti-
cles, particularly the statehood
guarantee. Their interpretation of the
Ordinance depended on subordinating its
provisions for territorial
government to the binding promises of
its compacts.
The distinction between the two parts of
the Ordinance is war-
ranted by its language. Only the compact
articles were supposed to
"forever remain unalterable."
It was therefore logical to conclude
that the governmental provisions were
not only temporary, but sub-
ject to tinkering. St. Clair himself
noted that they appeared to be "as
much in the power of Congress to alter
or repeal as a law which may
have passed yesterday."18 St.
Clair's opponents seized on the dis-
tinction, emphasizing the
"shortness of the time that our submission
can be constitutionally called
for."19 Goforth, in his letter to Jeffer-
son, offered the fullest reading of the
Ordinance in this vein: "The
Confederate Congress who gave existence
to the ordinance Govern-
ment seem to have been conscious that
such a Government would
not sit well on citizens from the free
states and therefore appear to
meliorate it by the Solemn and
unalterable compact with which they
prop it."20 Its authors,
Goforth thought, had intended that the two
sections of the Ordinance should balance
one another, that the com-
pact articles provide the context in
which the government provisions
should be read.
The Northwest Territory's
"ordinance government" was undoubt-
edly a necessity in the early stages of
its settlement, but the obnox-
ious St. Clair administration
represented the perpetuation of colonial
government beyond its proper time. The
attacks on St. Clair suggest
that the autocratic powers he claimed
were inappropriate to the stage
of political self-consciousness attained
in the territory. Those who
protested against the governor's rule
implicitly affirmed their readi-
ness, therefore, to govern themselves.
In 1801 St. Clair attempted to change
the future state boundaries in
the Northwest. His obvious intention was
to keep the territory "in
18. St. Clair to William Henry Harrison,
Feb. 17, 1800, Smith, ed., Life of St. Clair,
2:489-91.
19. Meeting at Columbia, Centinel of
the Territory, Feb. 20, 1796.
20. Goforth to Jefferson, Jan. 5, 1802,
Carter, ed., Territorial Papers, 3:198-201.
Northwest Ordinance
13
the colonial state" as long as
possible.21 The territorial legislature
"consented" to an alteration
in boundaries that would have split the
territory's prospective eastern state
and enlarged the western states,
as defined in Article V.22 According
to St. Clair's interpretation of
the Ordinance, Congress's subsequent
approval of this measure
would suffice to alter the compact
accordingly. As a Federalist with a
dim view of the readiness of the still
sparsely settled-and largely
Republican-territory for
self-government, St. Clair sought to delay
the advent of statehood as long as
possible. His outraged opponents
saw the division act as a blatant partisan
move to turn back the clock:
statehood had been promised when any one
of the embryonic
"states" reached a population
of 60,000, but the promise was mean-
ingless if boundaries could be redrawn
at will.23
The boundary controversy was a direct
prelude to the final push
for statehood. One of the leading
charges against St. Clair, in a list
drawn up by Thomas Worthington, was that
he "attempted to effect
the dismemberment of the Territory and
to destroy its constitutional
boundaries."24 St. Clair's
division act focused attention on the spe-
cific language of Article V concerning
boundaries; petitioners conse-
quently barraged Congress with pleas
that it vindicate the territory's
"constitutional" rights.25
When the division act passed, a hostile as-
sembly minority report proclaimed that
the Ordinance "has ever
been considered and acknowledged as the
Constitution of this Terri-
tory," and that the boundaries
"fixed and established" in Article V
"must forever remain unalterable,
unless by common consent." Of
course, the assembly majority did
"consent" to these changes. But
here is where the minority could turn
the defective character of the
21. St. Clair to James Ross, [December
1799], Smith, ed., Life of St. Clair, 2:480-84.
For St. Clair's public justification for
the division-emphasizing "natural" boundaries
-see his speech to the legislature, Dec.
19, 1799, Western Spy, Dec. 24, 1799, and his
letter to William Henry Harrison, Feb.
17, 1800, published as A Letter from Arthur St.
Clair, Governor of the North-Western
Territory, On the Subject of a Division of the said
Territory, read in Congress March 14, 1800 (Philadelphia, 1800).
22. "An Act declaring the assent of
the Territory . . . to an alteration in the ordi-
nance," Dec. 3, 1801, Salmon P.
Chase, ed., Statutes of Ohio and of the Northwestern
Territory, 3 vols. (Cincinnati, 1833), 1:341-42.
23. Downes, Frontier Ohio, 199-200;
Onuf, "Constitution for New States," 14-15.
24. Worthington's Memorandum to
President Jefferson, Feb. 20, 1802, Territorial
Papers, 3:212-14.
25. See the petition from Jefferson
County, n.d. given, reprinted in Scioto Gazette,
March 13, 1802. See Thomas Worthington's
account of congressional proceedings in
his letter to Nathaniel Massie, Feb. 8,
1802, Massie, Life of Massie, 191-92, and the
house debates of March 30 and 31, and
April 7 and 8, 1802, recorded in Annals of the
Congress of the United States,
1789-1824, 42 vols. (Washington, D.C.,
1834-56), 7
Cong., 1 Sess., 1097-1126, 1155-62.
14 OHIO HISTORY
territorial government-which St. Clair
usually was so anxious to
emphasize-to its own advantage. Because
of limits on suffrage under
the Ordinance, the assembly was not
truly representative and could
not be said to act for the people of the
territory as a whole. Further,
the minority reasoned, the dependent
character of the territory
made true consent impossible. Consent
presupposed a competence-
and freedom of action-that only states
could claim. Therefore, "no
alteration can take place until the
people residing within the bounda-
ries assume a state government; because,
if it was subject to an altera-
tion while under a Territorial government,
great imposition might be
practiced."26
The minority's reading of the Northwest
Ordinance was internally
consistent. No attempt was made to deny
the subordinate, depend-
ent character of the territory as long
as it was a territory. At the same
time, the people of the territory had a
full claim on the rights-that
is, to statehood within specified
boundaries-set forth in Article V.
Neither St. Clair nor his friends in the
assembly could diminish
those rights; instead, the claims of
future states were a constitutional
standard against which the territorial
government should be meas-
ured. When St. Clair's opponents
compared him to a British colonial
governor and accused him of
unconstitutional acts they were, in ef-
fect, reading him out of the Northwest
Ordinance. The authors of
the Ordinance had intended that the
colonies formed in the national
domain would become states; in view of
this intention, the specific
promises of Article V were controlling.
St. Clair had exceeded the
authority delegated to him under the
Ordinance.
State-making in Ohio set the pattern for
the creation of other states
in the Old Northwest. But nowhere else
was there such a neat fit be-
tween the agitation for statehood and
opposition to an unpopular,
"colonial" territorial
government. St. Clair's successors elsewhere
were far better politicans. Indiana and
Illinois moved rapidly toward
admission with territorial officials in
the vanguard.27 Both territories
benefited from the
"democratization" of territorial government-
including broader suffrage and more
elected officials-that culmi-
nated in the organic act for Wisconsin
Territory in 1836.28 In Michi-
26. "Protest of the Minority
Against the Division Act," [December 1801], Ohio Ga-
zette, Jan. 15, 1802.
27. For a good introduction to these
statehood movements see R. Carlyle Buley, The
Old Northwest: Pioneer Period,
1815-1840, 2 vols. (Indianapolis,
1950), 1:58-93, and
Barnhart, Valley of Democracy, 161-215.
28. The Wisconsin Act, d. April 20,
1836, is in Territorial Papers, 27:41-52. "Democ-
Northwest Ordinance
15
gan and Wisconsin these expanding
political opportunities facilitated
partisan development in the territorial
period. Territorial governors
functioned as crucial intermediaries
between national parties and
their territorial wings. Under these
conditions the contrast between
"colony" and "state"
was no longer compelling. In effect, the text of
the temporary government provisions was
rewritten by Congress as it
exercised a continuing, discretionary
authority over territorial admin-
istration.29
Ironically, the developmental dynamic
inherent in the original Or-
dinance came to be largely vitiated. The
territorial condition became
easily tolerable-indeed, federal
financing of territorial government
offered at least one distinct advantage.
Although, in an 1816 petition,
the Illinois assembly could still speak
of the governor's extensive
powers as "a badge of Colonial
degradation," the conditions that
once justified this rhetoric were
already rapidly disappearing. Be-
cause of the liberalization of
territorial government, the territories
could claim many of "the same
rights & privileges of self government,
that are possessed by the respective
States."30 Ambitious politi-
cians, in fact, often found Congress to
be more receptive to the po-
litical progress of the territories than
the people of the territories
themselves. As a result, complaints
about the territories' "colonial
degradation" seem more often
intended to raise political conscious-
ness in the territories than to
influence Congress. Exasperated by
popular resistance to representative
government, an 1804 meeting in
Knox County, Indiana, urged the
territory's freeholders to vote
against "remaining in the condition
of debased slaves." "There nev-
er was a people on earth, not even the
Prussians or Turks, in a more
humble and degraded condition than we
are." Indianans would
only have themselves to blame if that
condition persisted.31
The biggest obstacle to moving up
through the stages of territorial
government to statehood proved to be
popular indifference.32 But if
ratization" can be traced through
the digest of legislation included in Max Farrand,
The Legislation of Congress for the
Government of the Organized Territories of the Unit-
ed States (Newark, 1896), and is also discussed in Eblen, First
and Second Empires,
138-40, passim, and Onuf,
"Territories and Statehood."
29. For Michigan see Alec R. Gilpin, The
Territory of Michigan [1805-1837] (East
Lansing, 1970), and for Wisconsin see
Alice E. Smith, From Exploration to Statehood
(vol. 1 of The History of Wisconsin) (Madison,
1973).
30. Memorial to Congress, [January
1816], Territorial Papers, 17:285-87.
31. "Address to the Freeholders of
Indiana," Aug. 24, 1804, Indiana Gazette (Vin-
cennes), Aug. 28, 1804.
32. A Memorial of Sundry Inhabitants
of the Counties of Randolph and St. Clair
(Washington, D.C., 1806), complained
about being "unwarrantably precipitated into
the second grade of territorial
government," quotation at 6. See also "An Anonymous
16 OHIO HISTORY
the leadership ran considerably ahead of
public opinion in Indiana
and Illinois, the statehood movements in
both territories gained easy
victories, in 1816 and 1818
respectively. No coherent opposition to
the change emerged either at the
territorial or national levels. In
Michigan, the statehood issue was
complicated by a boundary con-
troversy with Ohio, and the resulting
delays encouraged territorial
Democrats to organize a genuinely
popular movement for state-
hood.33 In Wisconsin,
however, large majorities were actively hostile
to statehood long after the territory
passed the 60,000 population
threshold that qualified it for
admission under the Ordinance.34
References to the territory's
"colonial" condition therefore were di-
rected at Wisconsin voters. Statehood
proponents hoped to embar-
rass Wisconsinites into claiming rights
"guaranteed to them more
than half a century since." According
to an 1845 editorial, "it will be
her own fault" if the territory,
having long since mustered the re-
quired population, should "continue
to struggle under worse than
colonial vassalage."35
Statehood proponents sought to
sustain-or revive-a reading of
the Ordinance that made sense when
Governor St. Clair wielded a
heavy hand, but which had been subverted
by revisions of the pro-
visions for temporary government. Only
in Michigan, where the im-
passe over the southern boundary
threatened to keep the new state
out of the union, did concern about the
territories' "constitutional"
rights focus attention on the provisions
of Article V. Elsewhere, the
people of Old Northwest could take
statehood for granted. In the
meantime, the yoke of colonial bondage
did not weigh heavily.
II
There shall be neither slavery nor
involuntary servitude in the said territory,
otherwise than in the punishment of
crimes, whereof the party shall have
been duly convicted. . . . -Article VI.
Protest Against Transition to the Second
Grade," [1812], Territorial Papers, 16:209-10.
Michigan's belated arrival at
second-stage, representative government in 1823 is dis-
cussed in Gilpin, Territory of
Michigan.
33. For brief reviews of the
"Toledo War" and Michigan politics, see Gilpin, Territo-
ry of Michigan, 173-82, and Buley, Old Northwest, 2:190-203.
34. Opposition to statehood in Wisconsin
is discussed in Smith, Exploration to
Statehood, 648-51, and Smith, James Duane Doty: Frontier
Promoter (Madison, 1954),
290-93. Wisconsin voters rejected
statehood on four different occasions between 1840
and 1845.
35. "State Government, no. 2,"
Mineral Point Democrat, Oct. 15, 1845, reprinted in
Milo M. Quaife, ed., The Movement for
Statehood, 1845-1846, vol. 26 of Collections of
the State Historical Society of
Wisconsin (Madison, 1918), 358-60.
Northwest Ordinance
17
The Northwest Ordinance apparently
guaranteed that the territo-
ries would be formed into states. But
what kind of political communi-
ty would emerge in these new states?
Here was where the particular
interests of enterprising settlers
converged with broader questions of
political economy: what were the most
propitious conditions for the
development of the state as well as for
the success of individual enter-
prises? In the broadest sense, this was
a "constitutional" question:
provisions made at the founding of these
new states would determine
their future growth and prosperity. But,
because the debate about
the development of the Northwest
centered on the Ordinance com-
pact excluding slavery from the region,
it was also a constitutional
question in a much narrower sense.
Despite the early misgivings about the
prospects for development
reflected in the Congressional option to
form from three to five new
states in the Northwest according to
Article V, most commentators
endorsed the view that the course of
empire-and population-was
westward. "Candid, well informed
& judicious men" were said to be
convinced, in 1789, that within two or
three decades "there will be
as many inhabitants settled on the
western waters" as in the Atlantic
states.36 Assessing the
quality of the soil and the natural facilities for
trade and communication along the
"western waters," settlers and
speculators predicted that population
would spread continuously
and evenly across the territory. Given
such assumptions, the pros-
pects for the new states hinged on an
equitable division of the territo-
ry and thus on the boundary provisions
of Article V.
The protracted controversies over the
southern boundaries of
Michigan and Wisconsin demonstrated the
persistence of the equa-
tion between territorial extent and
access to transportation on one
hand and prospects for economic and political
development on the
other. Controversy centered on whether
the three southern states
should have "natural"
boundaries, including frontage on the Great
Lakes, or whether they should be
confined to the "constitutional"
limits (apparently) specified in the
Ordinance. Coincidentally, as they
countered the northern states' strict
construction of the language of
36. Unknown to Greenleaf, [1789], Thomas
Walcutt Papers, Massachusetts Histori-
cal Society (Boston), 1:123. See also
Walcutt to Paul Fearing, August 1790, ibid., 137.
For earlier misgivings about the growth
potential of the region see James Monroe to
Thomas Jefferson, Jan. 19, 1786, Edmund
Cody Burnett, ed., Letters of the Members
of the Continental Congress, 8 vols. (Washington, 1921-36), 8:285-86. But see also
James
Madison's argument in the Constitutional
Convention, July 11, 1787, that "population
· . . would constantly tend to
equalize," Max Farrand, ed., The Records of the Federal
Convention of 1787, 4 vols. (New Haven, 1911-37), 1:585-86.
18 OHIO HISTORY
Article V in defense of their states'
extended boundaries, representa-
tives of Ohio, Indiana, and Illinois
were driven to question the consti-
tutionality of the Ordinance itself.
The development question took on an
entirely different complexion
in the southern tier of territories and
states. The issue here was
whether or not the Northwest would be
able to compete successfully
against other possible emigration sites
for a fair share of the west-
ward flow of population. The key text
for this debate on the pros-
pects for development was compact
Article VI banning slavery from
the Northwest. Opponents and defenders
of exclusion alike chal-
lenged the assumption that population
would grow inexorably to-
ward some inevitable man-to-land ratio.
The territory's labor system
was a crucial variable. The operative
question became: what potential
settlers would the exclusion of slavery
exclude from the territory? In
asking this question, the assumption
that emigration was
homogenous-or easily homogenized-was
also subverted. Partici-
pants in the debate were forced to look
beyond the territory to the
sources of emigration. Their first
question would be empirical: how
many settlers could be drawn from slave
states or free states? Subse-
quent questions were more obviously
value-laden: why did or would
southerners come to the territory? Did
they want to escape slavery or
to extend its sway? Implicit in this
line of questioning was skepticism
about the political character of
southerners and their fitness for
membership in the new republics forming
on the Ohio River, a preju-
dice amply reciprocated in southern
settlers' aspersions on "Yankee"
character.
The slavery issue naturally heightened
sectional consciousness in
the Northwest, both in sharpening the
perception of a sectional dis-
tinction in the United States generally
and in recreating the cleavage
in the territory.37 (It
should be emphasized, however, that align-
ments on the slavery question were not
simply determined by place of
birth.) Discussion of the exclusion
article also focused attention on
the appropriateness of different regions
within the Northwest for dif-
ferent kinds of agriculture-and labor
systems. Distinctions within
the potential emigrant pool were thus
mirrored in a fracturing of the
37. On the sectional origins of
state-makers, see John D. Barnhart, "The Southern
Influence in the Formation of
Indiana," Indiana Magazine of History, 33 (September,
1937), 261-76, and Barnhart, "The
Southern Influence in the Formation of Illi-
nois,"Journal of the Illinois
State Historical Society, 32
(September, 1939), 358-78. On
emigration generally see Buley, Old
Northwest, 1:1-57. The best general account of
Northwestern attitudes toward race and
slavery is Eugene H. Berwanger, The Frontier
Against Slavery (Urbana, 1967).
Northwest Ordinance 19
homogenous landscape. Different areas
would develop differently,
both because they were suited to
different crops and because slave
or free labor was, in turn, supposedly
better suited to those crops.
The inevitable conclusion was that
development could not be as-
sumed: it was contingent and therefore
determined by political deci-
sions. And because those decisions
depended on how Article VI
was read-or rewritten-slavery became a
leading constitutional is-
sue in the state-making process.
Though the potential impact of slavery
exclusion on development
was only a minor theme in the Ohio
statehood movement, the main
lines of subsequent controversy were
already apparent. Statehood
proponents like Edward Tiffin argued
that "men of wealth and inde-
pendence of sentiment" would be
deterred from emigrating to the
territory "because they cannot
brook the idea of living under a gov-
ernment like ours."38 This
was, of course, yet another blast against
the St. Clair regime, not a covert plea
for admitting slaveowners to the
territory. Tiffin's logic was
straightforward: the Northwest had to
compete with other potential emigration
sites, both in the United
States and in neighboring European
colonies. If settlers went else-
where, population would be retarded and
political privileges de-
layed. But it is not surprising that St.
Clair's friends should find a
deeper, more sinister meaning in Tiffin's
argument. In truth, relatively
few settlers worried much about their
political "degradation": emi-
gration to the Northwest had been
sluggish not because of St. Clair's
bad reputation, but because it took so
long to paciify the Indian fron-
tier. The only "men of wealth"
likely to avoid the territory because
of its scheme of government under the
Ordinance were slaveholders.
Federalists with misgivings about
statehood explicitly connected
the slavery issue with the problem of
population growth and political
development. They exploited rumors that
southern settlers in the
Virginia Military District considered
the slavery prohibition uncon-
stitutional. Proslavery elements
allegedly argued that legalization of
slavery would attract settlers from
across the Ohio and "make the
State rich."39 In an
answer to Tiffin's attack on the territorial govern-
38. [Tiffin], "To the
Inhabitants," Scioto Gazette, Sept. 24, 1801. The same theme
was developed in William Duane's Aurora
(Philadelphia), April 12, 1802: "many per-
sons . . . would long since have added
to the number of the inhabitants of the North
Western Territory, if they could repose
confidence in the government."
39. Beverley W. Bond, ed., "Memoirs
of Benjamin Van Cleve," Quarterly Publica-
tion of the Historical and
Philosophical Society of Ohio, 17
(January-June, 1922), 3-71,
quotation at 70. These recollections
about events in 1802 were composed in 1820 from
contemporary journal entries. See also
Cutler, Life of Cutler, 67. See also Richard
20 OHIO HISTORY
ment, a "Hamilton Farmer"
predicted that if the Virginians suc-
ceeded in rushing Ohio toward statehood,
"we should have gentle-
men enough, and their negroes too."
Once they "get their Negroes
brought here . . . they would be riding
over us with their coaches,
and we should be obliged to go out along
with their negroes to make
roads for them."40
Few public figures dared advocate the
abrogation of Article VI
and the introduction of slaves. John C.
Macan, unsuccessful candi-
date for the state constitutional
convention, thought that the princi-
ple of state equality demanded that the
new state retain the power to
decide the issue for itself, "a
privilege, which almost every state in
the union holds as a just right."41
But most Republicans vigorously
disavowed the project. Deference to the
large number of Yankee set-
tlers in the territory as well as their
own abhorence of the institution
precluded any serious attempt to tamper
with Article VI: indeed, fi-
delity to the exclusion clause became a
kind of political test in early
Ohio politics.
Pressure for suspension, modification,
or abrogation of Article VI
was more pronounced in outlying regions.
The first petition to Con-
gress for repeal of the slavery
exclusion clause was drawn up at Kas-
kaskia, in the Illinois country, in
1796.42 The petitioners claimed that
the prohibition of slavery was an
"ex post facto" law, depriving
pre-1787 slaveholders of
"property" previously secured to them. In-
security about the status of the
so-called "French slaves" had al-
ready driven some Illinois people across
the river to Spanish Louisi-
ana where slavery was legal. The
prohibitory article thus worked not
only to deter potential emigrants but to
diminish the existing popula-
tion. This concern with population
growth-or loss-was heightened
by the distance of the Illinois country
from the frontier of settlement
and uncertainty about the development
potential of the unfamiliar, of-
ten tree-less prairie region.
Frederick O'Dell, "The Early
Antislavery Movement in Ohio," Ph.D. diss., Michigan,
1948, 97-104 and passim.
40. "Hamilton Farmer," Western
Spy, Nov. 21, 1801.
41. Statement of John C. Macan, d.
Chillicothe, Sept. 9, 1802, Scioto Gazette, Sept.
11, 1802. See also statement of John S.
Wills, another unsuccessful candidate, Sept. 10,
1802, in this issue.
42. Petition to Congress by John Edgar,
William Morrison, William St. Clair, and
John Dumoulin, Jan. 12, 1796, Jacob
Piatt Dunn, "Slavery Petitions and Papers,"
Indiana State Historical Society
Publications, 2 (1894), 443-529, at
447-52. See the
discussion in J.P. Dunn, Jr., Indiana:
A Redemption from Slavery (Boston, 1890), 219-
60. The legal issues are explored in
Paul Finkelman, "Law, Race, and Slavery in the
Land of Lincoln," paper delivered
at Claremont, Calif., February, 1984.
Northwest Ordinance 21
The Kaskaskia petitioners initiated a
campaign against Article VI
that gained momentum as successive
divisions of the territory estab-
lished new governments to the west,
beyond the Yankee frontier.
Southerners dominated Indiana and
Illinois territorial history, and a
sizeable number of them, particularly in
leadership positions, wanted
to open the region to slavery. Their
petitions betrayed an ambivalent
attitude toward the authority of the
Ordinance. The compact articles
could not be considered true
"compacts" because, as the 1796 pe-
tition explained, "they were made ex
parte by the original States
only." No one in the territory had
consented to these articles: in fact,
petitioners assured Congress, had the
people of the territory been
asked for such consent in 1787, they
would have refused it. Slavery
proponents did not proceed to the
logical conclusion that the Ordi-
nance was unconstitutional and therefore
void. By the very act of pe-
titioning, the petitioners deferred to
Congress's authority to revise,
rescind-or uphold-the Ordinance
compacts. But their suggestion
that the people of the territory would
have favored slavery in 1787,
and still did in 1796, implied a more
dynamic, "democratic" concep-
tion of consent that became explicit in
later proslavery agitation. The
Ordinance could be altered if the
"parties" to the compacts-the
original states, represented in Congress,
and the people of the pro-
jected new states-consented.
In subsequent years proslavery forces
sought to manifest their
"consent" to the abrogation of
Article VI so that a simple, reciprocal
act by Congress could have
constitutional effect. Thus, William Hen-
ry Harrison, Indiana's first territorial
governor, orchestrated a territo-
rial convention at Vincennes in 1802
which resolved, in the name of
the "People of Indiana
Territory," to "agree that the operation of the
Sixth Article . . . should be suspended
for the space of ten years."43
In 1805, petitioners from Illinois
sought a separate territorial govern-
ment within the boundaries
"alloted, in the fifth article of compact
... to form the western state,"
while offering their "consent" to a
modification of Article VI that would
"admit . . . slavery."44
Efforts to circumvent Article VI thus
did not overtly challenge its
constitutional authority. But the impact
of proslavery arguments was
ultimately subversive. Proslavery
polemics emphasized defects in the
original form of the compacts-notably in
the alleged absence of
43. Vincennes Convention, Dec. 25, 1802,
Dunn, ed., "Slavery Petitions," 461-70, at
469.
44. Memorial of St. Clair and Randolph
Counties, Dec. 18, 1805, ibid., 483-92, at
484.
22 OHIO HISTORY
competent parties-and suggested that
"consent" could be more au-
thoritatively obtained by referring the
question to Congress and to
the people of the territory or new
state. The significance of the pro-
slavery campaign to rewrite the
Ordinance was not so much that it
failed to win congressional
"consent" for overturning Article VI, but
rather that it promoted the idea that
the Ordinance's authority was
contingent, not perpetual. The
Ordinance's efficacy depended on the
present will of the contracting parties.
Following this logic, slavery
proponents could argue that when the new
states drafted their own
constitutions, the United States could
no longer claim authority un-
der the Ordinance to insist on the
compacts without degrading the
new states to a level of inequality.
The prevalent assumption that the
slavery prohibition was contin-
gent, even if it was in some attenuated
sense "constitutional," provid-
ed the framework for the debate about
development in Indiana and
Illinois. In 1805 the Indiana
representatives cited the excellent "pros-
pects of a speedy & immense increase
in our population."45 But, in
Governor Harrison's opinion, there were
impediments. Only when
these were removed would "the
settlement and improvement of our
country . . . correspond with its
fertility & highly advantageous situ-
ation."46 Among the
"embarrasments that have impeded" popula-
tion, Harrison undoubtedly meant to
suggest the prohibition of slav-
ery: slavery advocates assumed that
"the population west of the
Ohio must chiefly be derived from the
Southern and Western States
where slaves are most numerous."47
The implications of excluding
slaveowners and their slaves were
spelled out in a legislative resolu-
tion in 1806: "because of its
situation," Indiana would have to attract
settlers from states where "slavery
is tolerated, or for many years re-
main in its present situation, its
citizens deprived of the greater part of
their political rights, and, indeed of
all those which distinguish the
American from the citizens and subjects
of other Governments."48
According to this formulation, retarded
population growth would
prevent Indianans from attaining the
benefits of statehood. They
would remain in political bondage unless
they could hold bondsmen
of their own. In other words, the
promise of Article V would be de-
feated by the restriction in Article VI.
45. House to Gov. William Henry
Harrison, Aug. 1, 1805, Gayle Thornborough and
Dorothy L. Riker, eds., Journals of
the General Assembly of Indiana Territory, 1805-
1815, vol. 32 of Indiana Historical Collections (Indianapolis,
1950), 50-51.
46. Harrison's Address to the General
Assembly, July 30, 1805, ibid., 38-47, at 44.
47. Petition of Indiana Assembly to
Congress, Aug. 19, 1805, ibid., 101-08, at 103.
48. Resolution of Dec. 20, 1806, ibid.,
123-24. The date of the resolution is given in
Liberty Hall (Cincinnati), Feb. 17, 1807.
Northwest Ordinance
23
The slavery scare receded in Indiana as
the Yankee population
grew. Harrison's proslavery party had to
make do with the sub-
terfuge of the infamous indenture law of
1805, according to which
"servants" could be imported
into the territory under supposedly
voluntary agreements."49 But
the legalization campaign gained new
impetus with the creation of Illinois
territory where southerners re-
mained dominant well after the
attainment of statehood in 1818.50 As
in Ohio, though now with better reason,
opponents of slavery saw
the statehood movement as a proslavery
plot. "Caution" warned
readers of the Western Intelligencer opposed
to the "hellish system"
to avoid "the fascinating bate of 'state
government' " while south-
erners remained in the ascendant.
"Caution" was confident that
within a "few years" friends
of "humanity and freedom" would be-
come predominant, as they had in Indiana."51
But the issue re-
mained muted for the time being.
Statehood proponents prudently
disclaimed any intention of challenging
Article VI. Antislavery senti-
ment in Congress was already building
toward the Missouri contro-
versies, and any direct assault on the
Ordinance would certainly
have thwarted admission.
The slavery question emerged fullblown
in 1823-1824 during the
protracted struggle over whether or not
to call a new state constitu-
tional convention.52 The
constitutional status of the Ordinance and
the policy of slavery exclusion were
exhaustively debated. The au-
thority of the Ordinance could no longer
be identified or confused
with Congress's authority over the
territories or with its power to set
49. "An Act concerning the
introduction of Negroes and Mulattoes into this Territo-
ry," Aug. 26, 1805, Francis S.
Philbrick, ed., Laws of the Indiana Territory, vol. 21 of
Illinois State Historical Society
Collections (Springfield, 1930),
136-39. See the editor's
discussion at cxl-cxliii, and Emma Lou
Thornbrough, The Negro in Indiana: A Study
of a Minority, vol. 37 of Indiana Historical Collections (Indianapolis,
1957), 8-12 and
passim.
50. In general see Solon Justus Buck, Illinois
in 1818 (Springfield, 1917) and Norman
Dwight Harris, The History of Negro
Servitude in Illinois and of the Slavery Agitation in
that State, 1719-1864 (Chicago, 1904).
51. "Caution," d. Silver
Creek, St. Clair Co., March 29, 1818, Western Intelligencer
(Kaskaskia), April 15, 1818. For the
claim that the new state was free to institute slavery
regardless of Article VI see
"Candor," d. St. Clair Co., April 25, 1818, ibid., May 6,
1818.
52. On the convention question see
William H. Brown, An Historical Sketch of the
Early Movement in Illinois for the
Legalization of Slavery (Chicago,
1865); George Flow-
er, History of the English Settlement
in Edwards County, Illinois, vol. 1 of Collections of
Chicago Historical Society (Chicago, 1882); Merton L. Dillon, "Sources of
Early Anti-
slavery Thought in Illinois," Journal
of the Illinois State Historical Society, 50 (Spring,
1957), 36-50; and Dillon, "The
Antislavery Movement in Illinois, 1809-1844," Ph.D.
diss., Michigan, 1950, 73-122.
24 OHIO HISTORY
conditions for the admission of new
states. If Illinois was a "free"
state simply because of a provision in
its own constitution, then it was
free to allow slavery by constitutional
amendment. Did the Ordi-
nance control the state constitution or
had the constitution simply
incorporated-and thereby given a new
lease on life to the Ordi-
nance? Courts in the northwestern states
were ambivalent on the
question, but the climate of opinion in
the wake of the Missouri strug-
gle was increasingly congenial to
arguments for state sovereignty and
state equality that were incompatible
with constitutional limita-
tions.53
The Illinois conventionists persuasively
argued that "the people
are the only legitimate source of all
political power" and had the ab-
solute and unlimited "right"
and even "duty, to amend, alter, or
change their form of government."
The Ordinance "compacts"
could not exceed the reach of the
sovereign people.54 Anticonven-
tionists were reluctant to question
popular authority or states' rights.
George Churchill conceded that "the
legal power of the State of Illi-
nois to introduce slavery, is . . . a disputed
point." The United States
Supreme Court might find
legalization an unconstitutional violation of
the Ordinance, but, Churchill advised
his antislavery friends, you
must "rely upon yourselves. The
Congress of 1787, with parental so-
licitude, have confided to you the
sacred boon of liberty. It is your
duty to protect and preserve it."55
Though many of Churchill's allies
were convinced that the legalization of
slavery would be "unconsti-
tutional," it was by no means clear
whether federal authorities
would be willing or able to do anything
about it. At the same time,
by competing for votes in the plebiscite
set for August 1824,
anticonventionists accepted popular
authority as an operational prem-
ise. In effect, they urged the people of
Illinois to exercise their sover-
eign power to uphold exclusion.
The logic of the convention campaign
reinforced the convention-
ists' arguments for popular
constitutional authority and thus tended
to undercut the authority of the
Northwest Ordinance as a constitu-
tional text. Opponents of the Illinois
convention movement invoked
53. For a review of state court decisions bearing on the Ordinance see
Walter C.
Haight, "The Binding Effect of the
Ordinance of 1787," Publications of the Michigan
Political Science Association, 2 (1896-97), 343-402.
54. Public Meeting at Vandalia, Feb. 17,
1823, Edwardsville Spectator (Edwards-
ville), March 1, 1823.
55. Churchill, "To the People of
Madison County," March 4, 1823, Edwardsville
Spectator, March 15, 1823. Churchill was justifying his vote in
the Illinois house of rep-
resentatives against calling a
convention.
Northwest Ordinance 25
the Ordinance as a source of moral
obligation: it epitomized the wis-
dom and foresight of the Founding
Fathers and was, therefore, an
infallible guide for Illinois voters.
But the final decision-and the ul-
timate authority-was theirs.
Yet if the conventionists enjoyed the
apparent advantage on consti-
tutional grounds, recent trends in the
settlement of the West worked
against them. The larger controversy
over Article VI concerned the
impact of slavery exclusion on the
future development of the North-
west. The proslavery party had always
assumed that the region
would develop more rapidly if
slaveowners were allowed to cross the
Ohio. The South was long supposed to be
the most likely source of
potential emigrants. Slavery advocates
could compare the slow
growth of the "free"
territories north of the Ohio with the rapid set-
tlement of Kentucky and Tennessee,
admitted to the union in 1792
and 1796. If former slaveowners had not
remained in the Northwest
and if more recent emigrants had not
been allowed to bring their
slaves into the territory under various
pretexts, the contrast would
have been still more unfavorable to the
"free" frontier.
Conventionists exploited anxieties about
Illinois' prospects for de-
velopment as a free state. Illinois,
which had barely qualified for
statehood because of its sparse
population-and only then because
of fraudulent census returns-and now
faced new competition for set-
tlers from Missouri, where slavery was
tolerated. Hard times in the
aftermath of the 1819 crash emphasized
the need for new men, new
money, and new crops. But, the
conventionists warned, emigrants
would simply pass through Illinois on
their way to Missouri-unless
slavery was legalized. A conventionist
writing in the Illinois Intelligen-
cer summarized all the good things that the legalization of
slavery
would bring: "the country would
flourish, our state would be more
republican, and more populous."
Furthermore, the writer explained,
slave labor would be better suited to
areas which whites found un-
healthy: "in sickly season, the
sick could have more attention paid
them." Finally, "the condition
of the slaves [would be] much
ameliorated"-the diffusion argument
was a perennial favorite of
slavery advocates in the
Northwest-"and the several churches of
Christ would be considerably enlarged."56
Was the introduction of slavery the
answer to the state's problems?
56. "Convention," Illinois
Intelligencer (Kaskaskia), April 26, 1823. See also "A
Friend to Liberty," Edwardsville
Spectator, April 12, 1823: "We require the extension
of slavery in this state, to give zest
and enterprize to its inhabitants and to introduce
others that are wealthy and able to give
a stir to business amongst us."
26 OHIO HISTORY
This depended on whether the
conventionists' assumptions about
development were valid: that the South
was the prime source of emi-
grants, that slave labor would not drive
out white workers or deter
emigration from nonslaveholding areas,
and that, as a slave state, Illi-
nois would be better able to produce
more wealth and reproduce its
own population more rapidly. But
anticonventionists could effectively
challenge all these assumptions. The
Yankee diaspora was already
spreading across the northern frontier.
English settlers, led by Mor-
ris Birkbeck, the indefatigable liberal
and promoter, had moved into
the prairie region bordering Indiana.
These emigrants came to Illinois
because it was free: the legalization of slavery would cut off
these
most promising sources of future
population growth.57 Anticonven-
tion polemicists, led by Birkbeck,
argued that slavery and freedom
were locally incompatible and that
Illinois, therefore, would have to
make a choice as to which emigration to
encourage. In other words,
the state would not simply add would-be
Missourians by permitting
slavery; legalization would dry up other
souces of emigration while
driving out at least some of the present
free population.
Recent census data strengthened the
antislavery case. Birkbeck,
writing as "Jonathan Freeman,"
used population figures for slave and
free states to blast the argument that
slave states grew faster (and
therefore produced larger population
surpluses eligible for emigra-
tion). He also questioned the central
premise of the "diffusion" argu-
ment, that slave population did not vary
according to the extent of
territory in which slavery was
permitted. "If Ohio had been a slave-
state," Birkbeck concluded,
"there would have been, at this time,
about two hundred thousand more slaves
in the world, and two
hundred thousand fewer free
persons."58 The comparison between
Kentucky and Ohio now worked against
slavery promoters. Though
the two states covered almost exactly
the same extent of territory and
enjoyed "equal advantages of
climate" and equal access to the wider
world, the 1820 census showed the
increase in Ohio's population
over the preceding two decades to be
almost 200,000 greater than
Kentucky's. "Laocoon," another
anticonventionist, argued that
these figures "must be conclusive
against the slave policy, when
adopted with a view to the advancement
of population."59
57. Alton meeting, April 19, 1823,
ibid., May 10, 1823; extract of a letter from a gen-
tleman in Fredericksburgh, Va., to his
correspondent in this state, April 22, 1823,
ibid., June 7, 1823.
58. Birkbeck writing as "Jonathan
Freeman," no. 2, [June 1823], reprinted in Flower,
History of English Settlement, 215-16.
59. "Laocoon," no. 1, Edwardsville
Spectator, April 26, 1823. See also Daniel Stook-
Northwest Ordinance 27
Anticonvention writers explained
differential growth rates by in-
voking the superior productivity of free
labor and the more rapid
circulation and accumulation of wealth
under free institutions. The
answer to Illinois' problems was
economic development through
manufacturing, internal improvements,
and better agricultural tech-
niques.60 According to
"Aristides," "active industry, and an acceler-
ated circulation of money, always
attendant upon it, is always exciting
the mass of society in a free state to
energy, enterprize, and improve-
ment." Emigrants from the free
states "will bring us money and in-
dustry." But slaveholders lured to
the state would bring little circu-
lating wealth: their "capital"
was tied up in slaves who would
displace more productive white workers.
"Aristides" concluded
that "emigrants from the
South" would only "bring us idleness, van-
ity, luxury, and the slow but fatal
disease of slavery."61
Opponents of the convention campaign
could also take comfort in
the rapid growth of the number of
Illinoisans from the free states.
One of their most effective tactics was
to demonstrate the underrep-
resentation of the northern, antislavery
counties under the existing
apportionment scheme. The
anticonventionists argued that the con-
ventionists were all for rushing into
slavery while they still controlled
state politics. A "Farmer" had
no doubt that a majority in the state
were opposed to slavery, "but if we
incautiously sanction the call of a
convention before a new apportionment is
made, there will then be
danger that the minority of the
people will elect a majority of the con-
vention; and that the majority so elected, will introduce
slavery."62
This charge was repeated time and time
again as the election ap-
proached: it provided a popular,
democratic rationale for voting
against the exercise of popular
sovereignty in a constitutional conven-
tion. It was just as much the people's
right not to change, as it was to
change their constitution. And it soon
became clear to the anticon-
vention managers that they had the
votes.63 Except in the most
southern counties the convention party
was reduced to denying that
they intended to legalize slavery. They
even suggested that such an
attempt would be pointless because it
would be "unconstitutional,"
ey to Citizens of Illinois, Sept. 1,
1823, ibid., Sept. 6, 1823.
60. For typical statements of this view
see "A Farmer," ibid., March 29, 1823; "A
Farmer of St. Clair Co.," April 16,
1823, ibid., May 10, 1823.
61. "Aristides," no. 2, ibid.,
May 17, 1823.
62. "Farmer," March 29, 1824,
ibid., April 6, 1824.
63. Editorial, ibid., June 28, 1823;
Gov. Edward Coles to Roberts Vaux, Dec. 11,
1823, E.B. Washburne, Sketch of
Edward Coles, Second Governor of Illinois, and of the
Slavery Struggle of 1823-4 (Chicago, 1882), 162-64.
28 OHIO HISTORY
the very ground that the
anticonventionists had, for all practical pur-
poses, abandoned!64
In this complicated shuffling of
arguments and positions, Article VI
and the Ordinance generally came to be
seen as something more-or
something less-than a constitutional
text. For the conventionists, ea-
ger to overthrow its shackles, it was an
"ancient act of one-sided leg-
islation," "an instrument long
since out of use in this hemisphere," a
"blank sheet of paper."65
For anticonventionists, faced with the task
of mobilizing votes to uphold the
prohibition of slavery, it was a kind
of higher law, a guide to right
action-but not necessarily an authori-
ty in itself: the people gave the
Ordinance its authority.
Several lines of argument converged to
help transform the Ordi-
nance from a constitutional text into a
higher law. Anticonventionists
declaimed on the voters' responsibility
to the past, to the "sacred
Tree of Liberty that was planted by the
venerable sages of the revo-
lution, and baptised with the precious
blood of our fathers."66
They also parried conventionist attacks
on the tyranny of a musty old
"compact" to which the people
had never consented by arguing
that each new settler's emigration to
the territory renewed the Ordi-
nance's authority. The Ordinance set
forth the terms of purchase of-
fered by the federal government, the
"absolute owners of the
soil."67 The purchase of
federal lands thus created duties and obli-
gations in both buyer and seller: every
purchaser bought the prom-
ise of freedom as well as the soil
itself. The Ordinance was a "pledge
. . . offered to all persons who should
emigrate hither," Alfred Cav-
arly told an anticonvention crowd at
Carrollton. "This public pledge
was continued in good faith up to 1818,
and was at that date again re-
newed by congress, in the act enabling
the people of this territory to
form a constitution of state government,
and for the admission of such
state into the Union."68
At least some anticonventionists
conceded that no (earthly) power
could now constrain the state.
"Common Sense" concluded that
though the introduction of slavery would
be "illegal" and "a viola-
64. "Honestus," Illinois
Republican (Edwardsville), June 28, 1823; "Americanus,"
Illinois Gazette (Shawneetown), reprinted in Illinois Intelligencer, Jan.
16, 1824.
65. Item reprinted from Republican
Advocate (Kaskaskia), n.d., Illinois Intelligen-
cer, Jan. 30, 1824; "Yankee," d. Bond Co., ibid.,
May 24, 1823; "Yankee," ibid., May
3, 1823.
66. Toast by Seth Converse, Monroe Co.,
July 4, 1823, ibid., Aug. 9, 1823.
67. David J. Baker to Republican
Advocate, d. Kaskaskia, Jan. 28, 1824, Edwards-
ville Spectator, Feb. 17, 1824. See also "Whiteman," Illinois
Intelligencer, June 7, 1823;
"Farmer," no. 3, April 24,
1824, Edwardsville Spectator, May 4, 1824.
68. Alfred W. Cavarly speech,
Carrollton, July 4, 1823, ibid., Aug. 9, 1823.
Northwest Ordinance 29
tion of public faith and private
right," these were only "reasons why
it ought not to take place, but
are no reasons why it cannot take
place."69 But just as any
independent state was bound to honor trea-
ty obligations, and to preserve private
rights, so Illinois should re-
deem its promises to those who came
before, to Congress, and to the
world. So, at Sangamo, on July 4, 1823,
there were nine cheers for
"the Ordinance of '87-Illinois has
pledged her faith to support it";
another nine for the "compact made
by our fathers, may their chil-
dren scorn to violate"; and eleven
for the "Tree of Liberty, planted
by the ordinance of 1787, nourished by
Ohio and Indiana-May Illi-
nois never cut it down."70
Illinoisans had to keep faith with the
Founders by upholding the
Ordinance. They also had to keep
themselves free of "that vile pros-
titute" slavery, another July 4
speaker warned, "else depend upon it,
she will bring forth a monster to the
state, and indignation of God's
wrath, and one of the foulest stains
upon the American character."71
Ultimately, the voters in the convention
plebiscite were responsible
to the future, to their own children and
to emigrants from all over the
world. Without slavery, Illinois must
"become a star of the first mag-
nitude in the American firmament."72
But future generations could
not claim their inheritance if slavery
were permitted. Voters had to
keep faith with their fathers, their
children, and their God. Mindful
of this awful responsibility,
Illinoisans rejected the call for a conven-
tion by a decisive margin-6,640 to
4,972-in the August 1824 plebi-
scite.73
III
Many commentators challenged the
Ordinance's status as a consti-
tutional text, beginning with James
Madison who asserted in the
38th Federalist that it had been
enacted "without the least color of
constitutional authority."74 Later
critics also questioned the legitima-
cy of the Ordinance-its authors'
authority. Though it was subse-
quently reenacted by the new Congress in
exercise of its power under
69. "Common Sense," ibid.,
June 29, 1824.
70. Sangamo Celebration, July 4, 1823,
ibid., July 12, 1823.
71. Converse toast, July 4, 1823, Illinois
Intelligencer, Aug. 9, 1823.
72. "Reasons for Opposing a
Convention," ibid., June 4, 1824.
73. Theodore Calvin Pease, Illinois
Election Returns, 1818-1848, vol. 18 of Collec-
tions of the Illinois State
Historical Society (Springfield,
1923), 27-29.
74. Federalist no. 38 (Madison), Clinton
Rossiter, ed., The Federalist Papers (New
York, 1961), 238.
30 OHIO HISTORY
the territorial "rules and
regulation" clause of the Federal Constitu-
tion, the Ordinance henceforth derived
its authority from Congress,
and could be altered at will: it was not
a compact binding on Con-
gress. Further assaults on the Ordinance
were made by southerners
during the Missouri controversy. Arguing
against any constitutional
limitations on new states, they insisted
that the Ordinance became
"utterly void" once the
northwestern territories achieved state-
hood. According to Rep. Philip Barbour
of Virginia, "those States
might introduce slavery amongst them, if
they so willed," notwith-
standing the prohibition in compact
Article VI.75 Solicitude for
states' rights and state equality
ultimately led the Taney Court to re-
ject the idea that the compact articles
had any constitutional force at
all. Though "said to be
perpetual," they were not incorporated in
the Constitution and "they
certainly are not superior and paramount
to the Constitution."76
But the most significant challenges to
the constitutionality of the
Ordinance came from within the Old
Northwest itself. Local icono-
clasts included the pseudonymous
"Yankee" from Illinois who, dur-
ing the great Convention debate of
1823-24, argued that the "ordi-
nance of '87 has no more effect on the
people of Illinois than a blank
sheet of paper."77 In
1848, when Congress debated Wisconsin's
boundary claims, Rep. Rudolphus
Dickinson of Ohio dismissed the
Ordinance: "He did not consider
[it] . . . binding." The people of
his state "had never regarded the
principles of that ordinance since
the State was formed; nor was Congress
going to regard it; they were
going to disregard it now in receiving
Wisconsin into the Union."78
The explanation for these attacks is
simple enough. Ordinance provi-
sions or prohibitions favored or
penalized specific groups: for in-
stance, those who were for or against
slavery, or specified bounda-
ries, or statehood itself. Further, some
Northwesterners were
persuaded by states' rights arguments
that limitations on state sover-
eignty were intolerable,
particularly-ironically-as the federal gov-
ernment seemed to fall increasingly
under the sway of the "slave
power."79
75. Philip Barbour speech, Feb. 15,
1819, Annals of Congress, 15 Cong., 2 Sess.,
1187.
76. Strader et al. v. Graham, 10
Howard 82 (1850), 96. See also Pollard's Lessee v.
Hagan, 3 Howard 212 (1845), 223,
and the discussion in Francis Philbrick, ed., The
Laws of the Illinois Territory,
1809-1818, vol. 25 of Collections
of the Illinois State Histor-
ical Society (Springfield, 1950), ccxvi-ccxxii.
77. "Yankee," d. Bond Co., Illinois
Intelligencer, May 3, 1823.
78. Rudolphus Dickinson speech, May 10,
1848, Congressional Globe, vol. 18
(Washington, D.C., 1848), 30 Cong., 1
Sess., 747.
79. Don E. Fehrenbacher, "The
Federal Government and Slavery," paper deliv-
Northwest Ordinance 31
Yet if Northwesterners objected to
specific provisions of the Ordi-
nance, they were usually unwilling to
reject the document as a whole.
During the Michigan boundary
controversy, for instance, Ohio Sen.
Thomas Ewing rejected the new state's
interpretation of Article V,
but added that "next to the
constitution itself ... I hold [the Ordi-
nance] the most sacred among the
muniments of our national liber-
ty."80 This ambivalence reflected a
long and controversial history of
discourse over Ordinance provisions. The
result of these debates
was a kind of synthesis: apotheosis and
negation alike contributed to
the translation of the Ordinance into a
"higher law," disconnected
from the mundane political world.
Indeed, the movement from spe-
cific to general and concrete to
abstract was as much a result of a long
history of criticism of the text of the
Ordinance as of claims for its
constitutional authority. Of course,
once boundaries were settled, the
Ordinance states admitted, and the
slavery question definitively re-
solved by the rapid growth of the free
population, there was nothing
much left for Northwesterners to argue
about. The Ordinance could
then fill an important need as a symbol
of regional distinctiveness.
The sectional crisis contributed
importantly to the emergence of
the Northwest Ordinance as a regional
icon. It was in the context of
intersectional sniping that the issue of
authorship was first explicitly
addressed, inaugurating a debate that
would persist beyond the
tragic denouement of the sectional
conflict and dominate subsequent
historical writing. Former Virginians
like Illinois Gov. Edward Coles
-who played a leading role in the
convention struggle-promoted
Thomas Jefferson's pretensions to being
"the enlightened and be-
nevolent author" of the Ordinance.
Through the Ordinance, Jeffer-
son had succeeded in "excluding
slave emigrants, and making a non-
slaveholding State of Illinois, and of
all the other States formed out of
the northwestern territory."81
New Englanders insisted that Nathan
Dane of Massachusetts was the document's
true author. In his fa-
mous exchange with Sen. Robert Hayne in
1830, Daniel Webster em-
ered at Claremont, Calif., February
1984, and, for an excellent analysis of constitutional
issues in antebellum territorial
history, Fehrenbacher, The Dred Scott Case: Its Signifi-
cance in American Law and Politics (New York, 1978). Also see the stimulating discus-
sion in Arthur Bestor, "State
Sovereignty and Slavery: A Reinterpretation of Proslavery
Constitutional Doctrine," Illinois
State Historical Society Journal, 54 (Summer, 1961),
117-80.
80. Thomas Ewing speech, Dec. 21, 1835, Register
of Debates, 24 Cong., 1 Sess., 17.
81. Edward Coles, "History of the
Ordinance of 1787," read before Historical Soci-
ety of Pennsylvania, June 9, 1856,
reprinted in Clarence E. Alvord, ed., Governor
Edward Coles, vol. 15 of Collections of the Illinois State
Historical Society (Springfield,
1920), 376-98, quotation at 387.
32 OHIO HISTORY
phasized Dane's key role in drafting the
compact articles, notably the
slavery prohibition. Webster doubted
"whether one single law of
any lawgiver, ancient or modern, has
produced effects of more dis-
tinct, marked, and lasting character,
than the Ordinance of '87."82
The case for Dane was elaborated by
Judge Timothy Walker in a
speech to a crowd gathered at Marietta
to celebrate the fiftieth anni-
versary of the Ordinance. Walker told
his listeners that the Ordi-
nance had "prepared this then
wilderness for social existence, by
throwing around it the first protection
of law." "The emigrant there-
fore knew beforehand, that this was a
land of the highest political as
well as natural promise; and under the
auspices of another Moses, he
journeyed with confidence towards his
new Canaan." This "Moses"
was none other than "NATHAN DANE,
the author of the ordi-
nance."83
The common thrust of these differing
accounts of the origins of the
Ordinance was to connect the history of
the Old Northwest with the
founding of the American republic.
Through the Ordinance the
people of the Northwest reenacted a
scheme for state founding or-
dained by the founding fathers in the
old Congress. Through its
authorship, the Ordinance was linked
with the other great state pa-
pers that set forth the principles on
which the new nation itself was
founded. Such authorship-reinforced by
the suggestion of divine
intercession-was itself sufficient
warrant for the document's authori-
ty. In their more expansive moments,
Northwesterners asserted that
the Ordinance was one of the founders'
greatest achievements. Salm-
on Chase wrote in his preface to the Revised
Statutes of Ohio:
Never, probably, in the history of the
world did a measure of legislation so
accurately fulfill and yet so mightily
exceed the anticipations of the legisla-
tors. The ordinance has been well
described as having been a pillar of cloud
by day and of fire by night in the
settlement and government of the North-
western States. When the settlers went
into the wilderness they found the
law already there. It was impressed upon
the soil itself, while it yet bore up
nothing but the forest. The purchaser of
land became, by that act, a party to
the compact, and bound by its perpetual
covenants, so far as its conditions
did not conflict with the terms of the
cessions of the States.84
The Ordinance merited a preeminent
position in the statute books of
the Northwestern states not only because
of its historical signifi-
82. Daniel Webster speech, Jan. 20,
1830, Register of Debates, 21 Cong., 1 Sess., 39.
83. Timothy Walker, Annual Discourse,
Delivered before the Ohio Historical and
Philosophical Society, At Columbus,
On the 23rd of December, 1837 (Cincinnati,
1838),
9, 6.
84. Chase, ed., Statutes of Ohio, vol.
1, preface, 16-17.
Northwest Ordinance 33
cance, but because it continued to
function as a kind of higher law,
"as much obligatory on the state of
Ohio as our own constitution,"
according to the Ohio Supreme Court in
1832.85
If the Ordinance thus constituted a
claim to a share in the founding
of the new nation, it also promised to
secure the prosperity and abun-
dance to which America was so manifestly
destined. The economic
development theme was a particular
favorite of Northwesterners who
sought to exploit natural advantages-a
network of rivers and lakes,
the fertility of the soil-to promote the
growth of wealth and popula-
tion that would transform straggling
frontier settlements into powerful
states. Here, in Judge Walker's words,
was the "sagacious forecast"
of the authors of the Ordinance who
established the social and legal
conditions under which land could be
taken up. The "first cause of
our wonderful progress is undoubtedly to
be found in the character
and position of our soil. But when the
potential "settler turned from
the contemplation of the soil, to the
first fundamental law by which
his rights would be determined"-the
Northwest Ordinance-"the
inducement [to emigrate] was multiplied
ten fold."86
In their apotheosis of the Northwest
Ordinance, Judge Walker and
other celebrants fashioned a new vision
of the role of the Old North-
west in American history. Along with
Congressional provisions for
the sale and survey of public lands,
beginning with the 1785 Land
Ordinance, the Northwest Ordinance
provided a blueprint for future
communities, images of an organized
landscape and constitutional en-
vironment in which individuals could
freely pursue their own goals.
In such patriotic rhetoric past and
future merged. This was the ulti-
mate meaning of the Ordinance for
Northwesterners as they moved
beyond the struggles over state-making,
boundaries, and slavery. In-
dividual enterprise-beginning with the
act of emigration-was dou-
bly sanctioned, both by the promises of
the founders embodied in
the Ordinance and by the promise of
economic and political develop-
ment enterprise would promote.
85. William and John Hogg v. Zanesville
Canal and Manufacturing Co., 5 Ohio 410
(1832), at 416-17. For an earlier
opinion supporting this view see Huntington, C.J., in
Rutherford v. McFadden [1807], reprinted
in Liberty Hall, Nov. 3, 1807.
86. Walker, Annual Discourse, 8-9.
PETER S. ONUF
From Constitution to Higher Law:
The
Reinterpretation of the Northwest
Ordinance
The Northwest Ordinance is one of the
most celebrated texts in
American constitutional history. During
the state-making era in the
Old Northwest Territory, it was also a
controversial document.
Treated reverently by some speakers and
writers, it was dismissed
with contempt by others. Promoters
claimed that the Ordinance was
a constitution for the territories and
future states of the Northwest;
critics insisted that it had no more
constitutional significance than a
blank piece of paper. Celebration and
denigration developed in di-
alectical relation. On the same day in
February 1835, Rep. John
Quincy Adams of Massachusetts called it
a solemn compact, "firm as
the world, immutable as eternal
justice," while Rep. John Reynolds
of Illinois dismissed it as
"nothing more than an ordinary act of Con-
gress." Do not be deceived by
names, Reynolds warned: "Its as-
suming to itself the high-sounding
titles of 'ordinance,' and 'com-
pact,' does not make it so."1
This essay will explore the development
of these divergent inter-
pretations of the Northwest Ordinance.2
The significance of the Or-
Peter S. Onuf, Assistant Professor of
History at Worcester Polytechnic Institute, is
currently a National Endowment for the
Humanities Fellow at the American Antiquari-
an Society, Worcester, Massachusetts. He
would like to acknowledge helpful criticism
by Robert R. Dykstra and Cathy Matson.
An earlier version of this paper was pres-
ented at the October 1984 program
"Toward the Bicentennial of the Northwest Ordi-
nance: A Public Conference," held
at the Ohio Historical Center and sponsored by
the Ohio Historical Society with the
support of the Ohio Humanities Council.
1. Adams speech of Feb. 9, 1835, and
Reynolds speech of same day, Register of
Debates in Congress, 13 vols. (Washington, D.C., 1824-37), 23 Cong., 2 Sess., 1255,
1252-53.
2. The historiography is discussed in
Ray Billington, "The Historians of the
Northwest Ordinance," Illinois
State Historical Society Journal, 40 (December, 1947),
397-413; Philip R. Shriver,
"America's Other Bicentennial," The Old Northwest, 9 (Au-
tumn, 1983), 219-35; and James David Griffin,
"Historians and the Sixth Article of the
Ordinance of 1787," Ohio History, 78
(Autumn, 1969), 252-60. The best introduction to