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PETER S

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.²The 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

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

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.⁴The 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."⁷They 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

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

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."¹⁴St. 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."¹⁶The 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."¹⁸St. Clair's opponents seized on the dis-

tinction, emphasizing the "shortness of the time that our submission

can be constitutionally called for."¹⁹Goforth, 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."²⁰Its 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

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.²²According 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."²⁴St. 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.²⁵When 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.²⁷Both 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

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."³⁰Ambitious 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.³²But 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.³³In 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.

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

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.³⁶Assessing 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

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."³⁸This 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."³⁹In 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

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."⁴⁷The 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

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."⁴⁹But 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.⁵²The 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.⁵⁴Anticonven-

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."⁵⁵Though 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

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.⁵⁷Anticonven-

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."⁵⁸The 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

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.⁶⁰According 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.⁶³Except 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."⁶⁵For 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."⁶⁷The 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

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."⁷²But 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."⁷⁴Later 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.⁷⁵Solicitude 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."⁷⁷In 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

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

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.