The Northwest Ordinance (1787) was the first step in making our expanding nation into an empire of liberty. Congress, even before the Constitution was ratified, set forth rules protecting self-government, civil liberties, and ensuring that future states were on an“equal footing” with the original thirteen. Slavery was banned in the northern portion of the western territories. Slave owners could retrieve fugitive slaves. Our overseas colonies were treated as unequal partners. Only Hawaii (so far) became a state.
Federal Territory
The United States began as a narrow coastal strip of British colonies.
The British gained significant territory after winning the French-Indian War. The new territory brought difficulties, including Native Americans and French settlers with different religious and legal customs. Attempts to block new settlement (Proclamation of 1763) and respect the needs of the French colonialists (Quebec Act) were among the sources of post-war conflict.
The original thirteen colonies declared independence and became independent states. They ratified the Articles of Confederation, our original constitution, to govern the nation.
The western territory became one of the many difficulties the new nation had to address. Maryland refused to ratify the Articles of Confederation until Virginia gave up its claim to lands north of the Ohio River. Many states relinquished their western land claims, resulting in a sizable federal territory. Congress was left the responsibility to organize and govern it.
Early Plans
In 1783, Congress formed a committee to “prepare a plan for the temporary government of the western territory.” The peace treaty with Great Britain recognized our control of the area.
Thomas Jefferson was a congressional delegate and chaired the territory committee. Jefferson believed this was a special responsibility. He took part in our independence, writing a document listing the injustices suffered by the colonies. The Declaration of Independence emphasized liberty and self-government. Congress had to respect the rights of the unorganized territory.
Jefferson’s plan set forth a guide for the federal territory to be divided into self-governing states. A short-term territorial stage would include the protection of local self-government.
Each new state would enter the union having the same rights and powers as the original thirteen. New states would be on “equal footing” and not be second-class citizens.
The law setting forth the rules of territorial government was called a “land ordinance,” starting with the Land Ordinance of 1784. Jefferson also planned for the abolishment of slavery in the western territories by 1800. This proposal, however, did not receive the necessary support.
Northwest Ordinance
Jefferson left to be the United States minister to France.
Congress continued to consider how to develop its western lands. It divided the western territory into two with a northern and southern region handled separately.
The Ohio River became the dividing line. The Northwest Ordinance was passed in July 1787 as the Constitution was being written. Legislation later addressed the southwestern territory.
James Madison argued that the Articles of Confederation did not clearly authorize Congress to pass such legislation. The new constitution had a provision specifically authorizing Congress to regulate federal territories and create new states.
A Summary
The Northwest Ordinance set up three stages of territorial government.
Congress would appoint a governor along with other territorial officials. The second stage, when there were five thousand adult males in a district, would involve a territorial assembly. The third stage, statehood, would arrive when the population reached sixty thousand.
The ordinance protected certain basic rights that were later also protected by the Constitution and Bill of Rights. Congress protected religious liberty, habeas corpus, due process of law, trial by jury, banned cruel punishments and excessive fines, and protected property rights.
Education was to be encouraged to promote religion, morality, and knowledge. These things were necessary for good government. The federal government had a role in education from the start.
Careful respect was provided for the rights of Native Americans. For instance, “their lands and property shall never be taken from them without their consent.”
Slavery Ban
The final article of the ordinance foreshadowed the Thirteenth Amendment:
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.
The slave states accepted this provision with the understanding that the southwest territory would not have such a ban. Also, slave owners would have the right to reclaim fugitive slaves who fled into the territory. The Constitution also would have a Fugitive Slave Clause.
Abraham Lincoln later pointed to the Northwest Ordinance as an early example of congressional authorization to ban slavery in the territories. Slavery supporters would eventually find it an embarrassing precedent. The slavery issue would become much more controversial over time.
A Limited Precedent
The First Congress reauthorized the Northwest Ordinance. The Northwest Territory would later become the states of Ohio, Michigan, Indiana, Illinois, Wisconsin, and parts of Minnesota.
It was used as a model for other territories. The Northwest Ordinance became a symbol of self-government and liberty. There was a great deal of unrest when the Kansas-Nebraska Act did not include a ban on slavery, even for northern territory traditionally accepted as free.
A different practice, however, arose once the United States obtained overseas territories. Congress did, in certain respects, protect territorial self-government and civil liberty.
The territories were treated differently, with people arguing that they were not ready for constitutional rights such as trial by jury. The Supreme Court upheld this different treatment in the Insular Cases. French (Louisiana), Spanish (Florida), Mexican (California), and Russian (Alaska) citizens were previously welcomed with equal rights. Not so this time.
Overseas territories (except Hawaii) did not become states. The residents are U.S. citizens (except for American Samoa) without voting representation in Congress or the ability to vote for president. Our “empire of liberty” now had a bit more “empire” and a bit less “liberty.”