Cyclopædia of Political Science, Political Economy, and the Political History of the United States

Edited by: Lalor, John J.
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Includes articles by Frédéric Bastiat, Gustave de Molinari, Henry George, J. B. Say, Francis A. Walker, and more.
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ORDINANCE OF 1787 (IN U. S. HISTORY). The organic law under which took place the organization of the territory west of Pennsylvania, east of the Mississippi, and north of the Ohio.


—The acquisition of the "northwest territory" by the United States is elsewhere given. (See TERRITORIES.) After the completion of the Virginia cession, Jefferson, as chairman of a committee of three on the subject, reported to the congress of the confederation a plan for the temporary government of the western territory. As the conflicting claims of the partisans of Jefferson, Rufus King and Nathan Dane are apt to confuse the reader, it seems best to give the peculiar features of Jefferson's report, which was adopted April 23, 1784. 1. It covered the whole western territory, ceded or to be ceded, south as well as north of the Ohio. 2. Seventeen states, each two degrees in length from north to south, were to be gradually formed from it; one between Pennsylvania and a north and south line through the mouth of the Great Kanawha; eight in a north and south tier, bounded on the west by a north and south line through the great falls of the Ohio; and the remaining eight in a corresponding tier bounded west by the Mississippi. Even the names were to have been provided for the prospective states of the northwest, including such singular designations as Chersonesus. Sylvania, Assenisipia, Metropotamia, Polypotamia and Pelisipia, together with the less remarkable titles of Saratoga, Washington, Michigania and Illinoia. 3. "After the year 1800 there shall be neither slavery nor involuntary servitude in any of the said states other than in the punishment of crimes, whereof the party shall have been duly convicted." This prohibition, therefore, was to have been prospective, not immediate, and to have applied to all new states from the gulf of Mexico to British America. This proviso was voted on, April 19. New Hampshire, Massachusetts, Rhode Island, Connecticut, New York and Pennsylvania voted for it; Maryland, Virginia and South Carolina, against it; North Carolina was divided; and New Jersey, Delaware and Georgia were unrepresented. Not having seven states in favor, the proviso was lost. Delaware and Georgia were entirely unrepresented; New Jersey had one delegate present, who voted for the proviso, but a state was not "represented" except by at least two delegates. The language of the proviso, however, became a model for every subsequent restriction upon slavery. (See COMPROMISES, IV.; WILMOT PROVISO; CONSTITUTION, Amendment XIII.) 4. The states were forever to be a part of the United States, to be subject to the government of the United States, and to the articles of confederation, and to have republican governments. 5. The whole was to be a charter of compact and fundamental constitutions between the new states and the thirteen original states, unalterable but by joint consent of congress and the state in which an alteration should be proposed to be made. With the adoption of the report, except the anti-slavery section, Jefferson's connection with the work ceased. He entered the diplomatic service in the following month, and remained abroad until October, 1789.


—March 16, 1785, Rufus King, of Massachusetts, afterward of New York, offered a resolution that slavery in the whole western territory be immediately prohibited. The language is Jefferson's, excluding the words "after the year 1800," and changing "duly convicted" into "personally guilty." By a vote of eight states to three this was committed, and a favorable report was made, April 14 (probably); but it was never acted upon.


—In September, 1786, congress again began to consider the government of the territory, and a committee, of which Nathan Dane, of Massachusetts, was chairman, framed the "ordinance of 1787," which was finally adopted, July 13, 1787. The fairest view is that Jefferson's report was the framework on which the ordinance was built: the general scheme was that of the former, but the provisions were amplified, and the following changes and new provisions were made: 1. The prohibition of slavery followed Jefferson's, excluding the words "after the year 1800," thus making it immediate, and adding a fugitive slave clause. (See SLAVERY, V.) This article, says Dane, in a letter of July 16, 1787, to King, "I had no idea the states would agree to, and therefore omitted it in the draft; but, finding the house favorably disposed on this subject, after we had completed the other parts, I moved the article, which was agreed to without opposition." 2. On the other hand, as this was an ordinance for the government only of the territory northwest of the Ohio, its prohibition of slavery was territorially only about half as large as Jefferson's; and this may help to explain the different fates of the two. A further explanation of the passage of Dane's ordinance, even with a prohibition of slavery, has recently been brought to light by Mr. W. F. Poole (see "North American Review," among the authorities): in 1787 Dr. Manasseh Cutler, agent of the Ohio land company in Massachusetts, was ready to purchase 5,000,000 acres of land in Ohio if it should be organized as a free territory, and his judicious presentation of this fact to congress had a powerful influence upon the result. 3. Article III., and the conclusion of article IV., guaranteeing the freedom of navigation of the Mississippi and St. Lawrence, were new, and seem to have been due to Timothy Pickering, of Massachusetts.


—The ordinance proper began by securing to the inhabitants of the territory the equal division of real and personal property of intestates to the next of kin in equal degree; and the power to devise and convey property of every kind. Congress was to appoint the governor, the secretary, the three judges, and the militia generals; and the governor was to make other appointments until the organization of a general assembly. The governor and judges were to adopt such state laws as they saw fit, unless disapproved by congress, until there should be 5,000 "free male inhabitants of full age" in the district: a curious slip, considering the prohibition of any other than "free" inhabitants. On attaining this population the territory was to have a general assembly of its own, consisting of the governor, a house of representatives of one to every 500 free male inhabitants, and a legislative council of five to be selected by congress from ten nominations by the lower house, and to serve for five years. The assembly was to choose a delegate to sit, but not to vote, in congress; and was to pass laws for the government of the territory, not repugnant to the principles of the following "articles of compact between the original states and the people and states in the said territory," which were to "forever remain unalterable, unless by common consent." I. No peaceable and orderly person was ever to be molested on account of his mode of worship or religious sentiments. II. The people were always to enjoy the benefits of the writ of habeas corpus, trial by jury, proportionate representation in the legislature, bail (except for capital offenses, in cases of evident proof and strong presumption), moderate fines and punishments, and the preservation of liberty, property and private contracts. III. Schools and the means of education were forever to be encouraged; and good faith was to be observed toward the Indians. IV. The territory, and the states formed therein, were forever to be a part of "this confederacy of the United States," subject to the articles of confederation, and to the authority of congress under them. They were never to interfere with the disposal of the soil by the United States, or to tax the lands belonging to the United States; and the navigation of the Mississippi and St. Lawrence was to be free to every citizen of the United States, "without any tax, impost or duty therefor." V. Not less than three nor more than five states were to be formed in the territory. The boundaries of three of these, the "western, middle and eastern" states, [subsequently Illinois, Indiana, and Ohio, respectively], were roughly marked out, very nearly as they stand at present; and congress was empowered to form two states [Michigan and Wisconsin] north of an east and west line through the southern end of Lake Michigan. Whenever any of these divisions should contain 60,000 inhabitants it was to be at liberty to form a state government, republican in form and in conformity with these articles; and was then to be admitted to the Union "on an equal footing with the original states, in all respects whatsoever." VI. "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: provided always, that any person escaping into the same, from whom labor or service is lawfully claimed in any one of the original states, such fugitive may be lawfully reclaimed and conveyed to the person claiming his or her labor or service as aforesaid." This proviso was the first instance of a fugitive slave law: it was afterward added to the constitution. (See COMPROMISES, III.; FUGITIVE SLAVE LAWS; SLAVERY, V.)


—The general scheme of the ordinance, with the exception of the prohibition of slavery, was the model upon which the territories of the United States were thereafter organized. (See TERRITORIES.) Upon the inauguration of the new government under the constitution an act was passed, Aug. 7, 1789, recognizing and confirming the ordinance, but modifying it slightly so as to conform it to the new powers of the president and senate. When the territory south of the Ohio came to be organized, the organization was controlled by the stipulation of the ceding states that slavery should not be prohibited; and in the case of other territories the language often differed widely from that of the ordinance of 1787; but in all cases the underlying principles have been identical, so that the ordinance might be called the magna charta of the territories. The difference in statemanship between the British and the American methods of dealing with problems closely similar is elsewhere noted. (See REVOLUTION, I.; TERRITORIES, I.)


—In the organization of the five states which have been formed under the ordinance, the privileges secured by it to the inhabitants of the territory have been imbedded in the state constitutions, usually in the preliminary bill of rights. In Indiana, in 1802, a convention, presided over by Wm. H. Harrison, sent a memorial to congress, asking a temporary suspension of the sixth article; but a select committee, John Randolph being chairman, reported that such action would be highly dangerous and inexpedient. In 1805-7 successive resolutions of Gov. Harrison and the territorial legislature to the same end were followed in each year by favorable reports from the committees to which they were referred; but congress took no action. In the summer of 1807 the effort was again renewed; but the new committee reported, Nov. 13, 1807, that a suspension of the article was not expedient. By this time opposition to the suspension was growing stronger in the territory itself, so that the attempt was not renewed. But the legislature, the same year, passed laws allowing owners of slaves to bring them into the territory, register them, and hold them to service, those under fifteen years to be held until thirty five for males and thirty-two for females, and those over fifteen for a term of years to be contracted for by the owner and the negro. In the latter case, if the negro refused to contract, he was to be removed whence he came; and in both cases the children of registered servants were to be held to service until the ages of thirty for males and twenty-eight for females. Illinois, being then a part of Indiana territory, lived under these laws until her admission as a state, in 1818, when she enacted in her constitution that "existing contracts" should be valid. In this way slavery remained practically in force all over Illinois, and the pro-slavery party controlled the state. In 1822 an anti-slavery man was elected governor, by divisions in the pro-slavery ranks, and in his inaugural he reminded the pro-slavery legislature of the illegal existence of slavery in Illinois. That body retorted by an act to call a convention to frame a new constitution. The act had to be approved by popular vote, and after a contest lasting through 1823-4, was defeated by a vote of 6,822 to 4,950. In both states provisions forbidding future contracts for service, made out of the state, or for more than one year, gradually removed this disguised slavery.


—The preambles to the constitutions of Ohio, Indiana and Illinois all recite that the prospective state "has the right of admission to the Union" in accordance with the constitution, the ordinance of 1787, and the enabling act. In the case of Michigan congress long neglected to pass an enabling act; the people of the territory, therefore, resting on the fifth article of the ordinance, and claiming that the only condition precedent to admission (the increase of the population to 60,000) had been fulfilled, formed a constitution, and were admitted without an enabling act. (See MICHIGAN.) It should also be noticed that the extreme northwestern part of the territory, south and west of the head of Lake Superior, was not finally included in any of the five states named, but is now a part of Minnesota.


—The second of the articles of confederation declares that each state retains "every power, jurisdiction and right which is not by this confederation expressly delegated to the United States in congress assembled." The power to acquire, the jurisdiction to govern, and the right to retain, territory outside of the limits of the states, are nowhere in the articles, even by implication, given to the United States. Whence, then, did congress draw the power to vest in itself the title to the northwest territory, to frame this ordinance for its government, to abolish slavery therein, and to provide for the admission to the confederacy of five new states? The "Federalist" answers the question thus briefly: "All this has been done, and done without the least color of constitutional authority; yet no blame has been whispered, no alarm has been sounded." In other words, we are to suppose that the states, tempted partly by a willingness to despoil Virginia of her vast western claims, and partly by a desire to share in the proceeds of the western territory as a common stock, were willing to allow their imbecile congress to appropriate a source of revenue to which it had no shadow of claim, and which, as it then seemed, would so increase in a few years as to make congress independent of the states. Such a supposition does far less than justice to the acuteness of the state politicians who were then the controlling class; they would have been glad to withhold the power to govern the territories from congress, and yet how were they to avoid granting it? The reason for their "whispering no blame, sounding no alarm," lay in the patent necessity of the case, in the political law which finally forces a recognition under any form of government, that it is only in non-essentials that a limitation on sovereignty can be deduced by implication, and that there are certain essential attributes of sovereignty which can only be restricted in express terms. (See also Hamilton's argument in BANK CONTROVERSIES, II.) The right to acquire property is as much the natural right of a government, however limited, as of an individual; and a government, if restricted so far as to be denied this right, is either non-existent or impotent. It is not true that circumstances, in this case, compelled the states to allow a violation of the articles of confederation; it is rather true that circumstances, in this case, compelled the state politicians to respect the natural rights of the national government, which, in so many other cases, they had attempted to limit by the general phrases of the second article. (See NATION.) We are therefore to take the sovereign right to acquire territory as the justification of the ordinance of 1787, just as in the case of the annexation of Louisiana, which was equally unauthorized by the constitution. (See CONSTITUTION, III., B, 2.)


—Undoubtedly the greatest benefit of the ordinance to the territory which it covered was its exclusion of slavery from it. It thus received the full sweep of that stream of immigration, foreign and domestic, which so carefully avoided slave soil; the strictness with which this westward stream confined itself to the comparatively narrow channel bounded by the lakes and the Ohio, is of itself a testimony to the wisdom of the sixth article. Beyond this, however, there were countless other benefits. The enumeration of the natural rights of the individual was a political education for the people of the new territory, as well as a chart for the organization of the new state governments. The stipulations for the encouragement of education, though too indefinite to be binding, have exerted an enormous influence upon the demands of the people and upon the policy of the legislatures. This whole section was thus, from the beginning, the theatre of a conscious and persistent attempt to combine universal suffrage and universal education, each for the sake of the other; and the success of the attempt, though still far from complete, has already gone far beyond any possible conception of its projectors. Most important of all, from a political point of view, the ordinance was the first conscious movement of the American mind toward the universal application of the federal principle of state government to the continent. The original states owed their formal individuality to accident or the will of the king; the inchoate states of Vermont, Kentucky and Tennessee were the accidents of accidents; here, in the northwest territory, the nation first consciously chose the state system for its future development. (See NATION, III.)


—Major General Arthur St. Clair, a delegate from Pennsylvania, and president of congress during the adoption of the ordinance, was the first governor of the territory, 1788-1802. His biography, cited below, is the best exposition of the practical workings of the ordinance. When the portion of the northwest territory outside of Ohio was organized as Indiana territory (see that state), William H. Harrison became its governor, 1800-11, and was succeeded by John Gibson, 1811-13, and Thomas Posey, 1813-16, until Indiana became a state. When the separate territory of Illinois was organized (see that state), Ninian Edwards became its governor, 1809-18. Michigan, as a territory, had as governors William Hull 1805-13, Lewis Cass 1813-31, Geo. B. Porter 1831-4, and Stevens T. Mason 1834-5. When Wisconsin was separated from Michigan as a territory, its governors were Henry Dodge, 1836-41 and 1845-8, James D. Doty 1841-4, and N. P Tallmadge 1844-5. The small remainder of the territory, after the admission of Wisconsin as a state (see WISCONSIN; MINNESOTA), was added to Minnesota.


—For the cessions of the various states which went to make up the northwest territory, see TERRITORIES.


—The text of the ordinance is in 1 Poore's Federal and State Constitutions, 7; 1 Stat. at Large (Bioren and Duane's edition), 475; Duer's Constitutional Jurisprudence, 512; Andrews' Manual of the Constitution, App. xiii.; see also North American Review, April, 1876; Hildreth's Pioneer History, 193 (Ohio Company); Taylor's History of Ohio, 493; 1 Bancroft's Formation of the Constitution, 177, and 2 : 98; H. B. Adams' Maryland's Influence in Founding a National Commonwealth; Coles' History of the Ordinance of 1787 (read before the Penn. Hist. Soc., June 9, 1856); 4 Journals of Congress, 373, 379; 3 Hildreth's United States, 449; 1 von Holst's United States, 286; 1 McMaster's History of the American People, 505; 1 Schouler's United States, 98; 2 Pitkin's United States, 210; 1 Curtis History of the Constitution, 291; 1 Draper's Civil War, 180; 1 Wilson's Rise and Fall of the Slave Power, 31; 1 Greeley's American Conflict, 38; 2 Holmes' Annals, 354; 1 Stat. at Large, 50 (act of Aug. 7, 1789); Smith's Life of St. Clair; Burnet's Settlement of the Northwest Territory; Washburne's Sketch of Edward Coles; Story's Commentaries, § 1310; The Federalist, xxviii. (by Madison); and authorities under articles referred to. For Jefferson's claims to the authorship of the ordinance, see 1 Benton's Thirty Years' View, 133; 1 Randall's Life of Jefferson, 397; for Dane's, see 3 Webster's Works, 397; for Dane's, King's and Pickering's, see 2 Spencer's United States, 202; Pickering's Life of Pickering.


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