Peter S. Onuf: Statehood and Union: A History of the Northwest Ordinance. Notre Dame: University of Notre Dame Press, 2018. First published in Constituting America, May 29, 2026.
If English John Locke was the philosophic father of the Declaration of Independence, France’s Charles Louis de Secondat, baron de la Brède et de Montesquieu was the philosophic founder of the United States Constitution—America’s first ally in peace, even as French soldiers and sailors served as our first allies in the Revolutionary War.
In his 1714 treatise, The Spirit of the Laws, Montesquieu posed a question to his contemporaries. Democratic regimes could arise in ancient Greece because the small city-states could assemble their few thousand citizens in one place to make decisions. Since large modern states cannot do that, how can the people be heard?
He answered: with such institutions as representation and separated balanced powers, modern regimes could become sustainable democratic republics. Seven decades later, Publius would make that argument in The Federalist, defending the Constitution during the struggle for its ratification. America, he wrote, could be a new kind of republic, an “extended” republic, large enough to defend against the powerful monarchic empires surrounding it while still enabling the sovereign people to govern themselves.
But how far could the extended republic extend beyond the original thirteen states? Here, too, Montesquieu had a thought—not a question and answer but a warning. The Roman republic had been an empire. As long as that empire extended no farther than Italy, its central institution, the senate, could rule effectively. “But when it carried its conquests further, when the senate had no direct view of the provinces” Rome sent proconsuls to rule them, men who necessarily held legislative, executive and judicial powers, since they rued foreigners, not Romans. This made them resemble the Turkish despots of the modern world; indeed, Montesquieu calls them “the pashas of the republic.” Thus, by extending its empire the Roman republic built a regime contradiction into itself: “A conquering republic can scarcely extend its government and control the conquered state in accordance with the form of its constitution.” Resenting this tyranny, and especially the heavy taxes it imposed. the “subject nations” came “to regard the loss of liberty in Rome” as the precondition of “the establishment of their own” liberty. First, powerful military ruler in the provinces marched on Rome, ending republicanism and seizing power for themselves; eventually, the subject nations attacked the Roman emperors, ending Roman rule itself. [1]
In the summer of 1787, as the delegates sweltered at the Constitutional Convention, addressing Montesquieu’s question about popular self-government, members of the Continental Congress addressed Montesquieu’s warning about republican empires, framing the Northwest Ordinance, which historian Peter S. Onuf calls “the blueprint for a great American empire of continental dimensions.” How could a republic establish an empire without destroying itself in the long run? How could it secure the natural and civil rights of citizens who took the risk of moving into what was then the wild west, the places we now know as Ohio, Indiana, Michigan, Illinois, and Wisconsin?
Their answer was, we won’t have a colonial empire like Rome or the British empire that was modeled on Rome. We will not keep the western territories subordinate to the original states, as the British had attempted to do with the American colonies. We will instead prepare them to stand up, as the Northwest Ordinance stipulated, “on an equal footing” with those states in the American Union. The settlers will become citizens enjoying civil equality, including guarantees of religious liberty, representative government the rights of habeas corpus and to jury trials. To these political guarantees we will add commercial ties to the rest of the country, ties that property rights foster. Article IV, section iii of the future Constitution reinforced this: “New States may be admitted by the Congress into this Union” and “Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States,” with “nothing in this Constitution” to be “so construed as to Prejudice any Claims of the United States, or of any particular State” now in the Union.
Crucially, Congress demonstrated that it understood what way of life comported with republican citizenship. “Religion, morality, and knowledge being necessary to good government and the happiness of mankind, Schools and the means of education shall forever be encouraged.” Civic education, pervaded by Biblical morality, had already been established in new England when it still consisted of colonies, and New England was where most of the settlers in the Northwest territories would come from. The Ordinance ensured that they would bring their schooling with them. They wouldn’t be bringing their slaves with them; the Ordinance prohibited that. Slavery wasn’t as important an element of the New England political economy as it was in the Southern states, so that would be no barrier to prosperity in the settlers’ new home.
Enacting the Northwest Ordinance was one thing, implementing it another. The prolongation of federal rule, including control of public lands; the borders between future states (Ohio and Michigan nearly went to war over Toledo), the increasingly vexed matter of slavery, which some settlers wanted to introduce, despite the ban; and even the Ordinance’s authority over the settlers, some of whom claimed that popular sovereignty in the future states overrode Congressional law—all of these occasioned bitter polemics between the territories and Congress, and among the settlers themselves. The first settlers didn’t always help matters. As Onuf remarks, “The West that policy makers imagined—peopled by orderly industrious settlers, connected to the old states by common interests and loyalties and busily contributing to the national wealth and welfare—was nothing like the West that already existed,” a region “infested” by “speculators, squatters, and other adventurers” who aimed at “promoting their private interests, defying state and national authority, and entertaining overtures from foreign powers.” More, north of the Ohio River, “hostile Indians remained a formidable presence.” While the Ordinance guaranteed that “the territories would not have to resort to revolution to vindicate their constitutional rights,” what exactly was the constitutional status of the Ordinance itself? Once Congress had sold federally owned lands to settlers, to what extent were those settlers bound to obey the Ordinance, or were they free to enact laws contradictory to its provisions, so long as they enacted nothing that contradicted the Constitution itself?
Onuf emphasizes Congress’s material interest in developing western lands. It had incurred a substantial war debt, and they wanted to use land sales to pay it. But a willing seller needs willing buyers, and “a few false steps could transform the dream of western development into a nightmare of lawlessness, frontier warfare, and disunion.” Only a sound legal framework consistent with American constitutional principles would bring real settlers into the region, persons who could govern themselves, defend themselves against the still-formidable Indian nations, and establish farms and other businesses which could sustain commercial ties with the other parts of the Union. A subsistence economy, similar to that already in place among the Indians, would not suffice. “Unlike the leaders of the Revolution, proponents of union through development sought to mobilize private interest and enterprise, not self-denial and sacrifice, to bring forth a new order”; one suspects that this was because they weren’t fighting a war.
The Founders themselves disagreed on the matter. Surprisingly, James Madison, who argued forcefully for the United States as a viable “extended republic” in the tenth Federalist—published the same year as the Ordinance was enacted—had maintained, three years earlier, that western migration was a zero-sum game, that it would depopulate the original states, weaken land values, and funnel resources away from “that maritime strength which must be [the states’] only safety in case of war.” Expanding the Union too far would endanger it. James Monroe and Rufus King were equally skeptical. Against such views, Benjamin Rush cited the American “passion for migration,” which, far from diminishing the population, had spurred its increase. Yale College president Ezra Stiles, one of the earliest American students of demography, correctly predicted that Americans would multiply in population without necessarily dividing politically; he expected the population to rise from approximately 3 million in the late 1700s to fifty million in the centennial year of 1876. (He was over-optimistic, but the loss of so many young men in the Civil War, which he had no way of calculating some seventy-five years in advance, would have skewed any estimate; the actual population in 1876 was forty million.) In the end, Congress decided to take the risk.
Their first step was the Land Ordinance of 1785. To organize lands purchased from the Indians, Congress sent surveyors from each state to lay out townships of six square miles each, plots of one square mile (640 acres) within each township to be sold for one dollar per acre. The worry was that the land was so fertile that the settlers would not need to be industrious, preferring to live in “semisavage indolence”—forming regimes incompatible with the United States. The price tag for purchase, however, “would block out poor, lazy squatters,” instead attracting “industrious settlers determined to recoup their investment,” all “clustered in adjacent townships” (rather like Thomas Jefferson’s “ward republics”) which could form viable local markets while sustaining and encouraging habits of self-government. By contrast, squatters (Crèvecoeur described them as “no better than carnivorous animals of a superior rank”) would quarrel with the Indians and “drag everyone else into their disputes” while attacking the surveyors and any civilized folk who dared to enter the region. George Washington, himself a surveyor and purchaser of Ohio lands before the Revolutionary War, shared Crèvecoeur’s distaste for the squatters and exerted his considerable influence to shut them out. With orderly settlement, he wrote, “the gradual extension of our Settlements will as surely cause the Savage [Indian] as the Wolf to retire,” white semi-savages along with them. Simultaneously, as Jefferson hoped, in Onuf’s words, that “rational, systematic settlement” would prove an exercise in civic education, an opportunity to found “enlightened communities” throughout the Northwest. The forerunners of the settlers, the surveyors would act not only “as the eyes and ears of potential purchasers but would help produce accurate surveys that would supply information about tree types and soil fertility as well as potential routes to markets,” the connection between knowledge and land values” being “axiomatic.”
The Land Ordinance was necessary to the population of the Northwest Territories, but insufficient. “Policy makers realized that they could only attract orderly and industrious settlers to the Northwest if they guaranteed law and order—and land titles—from the very beginning of settlement”; they needed to establish “effective territorial government.” That would mean temporary colonial governments in each future state, along with the sale of land rights to men capable of promoting sales and of assisting settlers. The Ohio Company of Associates, founded in Boston in 1786 by four businessmen, met the latter need. Allying with William Duer, secretary of the U.S. Treasury Board, the Company purchased 1.5 million acres and established its anchor settlement in Marietta, Ohio. The Northwest Ordinance met the need for government.
That government consisted of a General Assembly, with representatives from any settlement with a population of 5,000 or more; a government appointed by Congress for a three-year term; a secretary appointed for a four-year term, charged with keeping records, including an accurate copy of all laws, a five-member legislative council, and a three-man court. Congress had final approval of all General Assembly members. In addition to this institutional structure, the Ordinance set down what was effectively a Bill of Rights, those rights including religious freedom, habeas corpus, trial by jury, and representative government—civil rights reflecting the natural rights enunciated in the Declaration of Independence, rights governments should secure, according to the Declaration. With the right to representation came the duty to pay taxes as “apportioned on them by Congress,” in the same proportion “as in the original States.”
“This purpose, those ruling offices, and those rulers all contributed to the final regime element necessary” to prepare the territories “for their admission to a share in the federal Councils on an equal footing with the original States: a way of life consistent with republicanism. Hence the Third Article: “Religion, Morality and knowledge being necessary to good government and the happiness of mankind, Schools and the means of education shall forever be encouraged.” The complementary ‘foreign policy’ of the Territory would be that “the utmost good faith shall always be observed towards the Indians, their lands and property shall never be taken from them without their consent; and in their property, rights and liberty, they shall never be invaded or disturbed, unless in just and lawful wars authorized by Congress; but laws founded in justice and humanity shall from time to time be made, for preventing wrongs being done to them, and for preserving peace and friendship with them.” As for slavery, “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,” although slave fugitives from other areas “may be lawfully reclaimed” and returned to their ‘owners.’
There was a caveat, when it came to statehood. The segments of the Northwest Territory that were expected to become states needed to meet a population threshold of 60,000, but even after statehood as achieved, remaining federal lands were still to be controlled by Congress and could not be taxed by the states. Ohio was the first to reach the required population. Its Congressionally appointed governor, Arthur St. Clair, a member of the Federalist Party, saw that most of the settlers were Democratic Republicans; his attempts to delay statehood (and thus to delay the seating of what would surely be two additional Democratic U. S. senators), rankled the Jeffersonian Democrats, fervent advocates of states’ rights eager to increase their Congressional majority. When Congress passed an enabling act calling for a state constitutional convention and prescribing terms for the new state’s admission, including a condition that disallowed Ohio from taxing federal lands for five years after they were sold to private individuals. Doubtless in a mood of irony, the Federalists could now accuse the states’-rights Democrats of violating the state’s rights. “What were the constitutional limits off national authority in the territories?”
“In characteristically blunt fashion,” Governor St. Clair described Ohioans as “a multitude of indigent and ignorant people” who were “ill qualified to form a constitution and government for themselves.” By leaving their home states and settling in the Ohio territory, they had “ceased to be citizens of the United States and became their subjects”—and therefore in effect his subjects. This reminded Ohio settlers of the condition of all Americans under the British Crown. However, as Onuf recalls, “the Atlantic states had grown powerful and virtue through protracted colonial apprenticeships”; further, for the moment, Ohio needed the rule of law, which only the federal government could provide. St. Clair wanted Ohio’s protracted apprenticeship to be protracted as long as possible. Needless to say, President Jefferson did not.
Democrats “chose not to deal systematically with the constitutional questions raised by their Federalist opponents,” preferring to rely on their majorities in Congress and in Ohio itself. Such political power led some of the other territories to delay statehood altogether, preferring to allow federal tax revenues to finance their governments—for which, under statehood, they would need to pay themselves.
This comfortable muddle did not address another controversy, the question of states’ boundaries. The Ordinance described the boundaries of the first three states to be formed, the ones in the southern section of the Territory: Ohio, Indiana, and Illinois. But Congress didn’t decide whether the northern section would have one state or two, and what their borders would be. For example, in 1787, no one knew “the precise location of Lake Michigan.” More broadly, “the key question was whether or not the Ordinance controlled Congress as well as the people of the Northwest as they set about forming their new states.” After all, the Ordinance was just that—an ordinance passed by Congress. It predated the ratification of the U. S. Constitution, but it could not be said to enjoy the same status. How far, then, did federal control over the states’ boundaries extend, when it came to settling boundary disputes between the southern states and, for example, Michigan, which was still a territory? “The framers of the Ordinance wanted it both ways. They wanted to fix boundaries while retaining the flexibility to provide for unforeseeable contingencies. But these goals could be contradictory.”
For Ohio and Michigan, the border controversy became acute in the mid-1830s. Ohioans wanted Toledo to be part of their state. It was expected to be the terminus of the Wabash and Erie Canal, Ohio’s only access point to Lake Erie. But Michiganders also wanted Toledo. The territorial governor of Michigan and the state governor of Ohio sent troops into the area. President Jackson intervened, sending negotiators, who staved off military conflict. This gave Ohio the time to leverage the power of their Congressional delegation, an option a mere territory could not exercise. “Ohio could also count on cooperation from Indiana and Illinois delegates concerned about the implications of Michigan’s claims for their own boundaries.” This coalition made Michigan’s accession to the Ohio claims a precondition for Michigan statehood. Further, Michiganders had no legal recourse, since as a territory they had no standing before the United States Supreme Court. They could only fall back on the dubious argument that the Ordinance should be equivalent to the Constitution as the “unchangeable and fundamental law” of the territories. Ohioans countered that Congress had reviewed the Ohio state constitution prior to admitting the territory into the Union, and that constitution set the northern border to encompass Toledo. Needless to say, the Congressional delegates from the Ohio-Indiana-Illinois bloc concurred. This argument, and this coalition, enabled Ohioans to get the border they wanted without recourse to any claim that they were “nullifying” the authority of the federal government. Congress somewhat lamely compensated Michigan for its defeat by awarding it what is now known as the “Upper Peninsula”—cold comfort, in both the political and climatic sense. As one Michigan newspaper editor put it, we have given up the valuable southern boundary for a land “fit only for the habitation of white bears, frogs, and tortoises.” Fortunately, Michiganders were sensible folk, reasoning that “the many advantages of statehood outweighed the loss of a few townships.”
Although the Northwest Ordinance lost its real-world authority to Congress and to the states, it endured as “eloquent testimony to the nearly universal support for the constitutional ideal that had guided the American territorial system since its founding,” including the rightful movement of a United States territory to statehood and the Constitutional rights citizens would enjoy once their territories became states, with the recognition that slavery was an institution unfit for inclusion in any of the states formed from the original Northwest Territory. Michigan achieved statehood in 1837, Wisconsin in 1848, as slave-free states.
Nonetheless, as slavery became the central political dispute in the United States, it became a topic of dispute even within the five Territory states. The anti-slavery clause itself had been added to the Ordinance at the proverbial last minute, by Massachusetts delegate Nathan Dane, who used language nearly identical to that proposed by Rufus King, in his failed attempt to insert such language in the 1785 Land Ordinance. There was no opposition from southern Congressmen, “the overwhelming majority in Congress”; interested entirely in linking the future states to their states by trade, they “unanimously voted to prohibit slavery in the Northwest.” Southerners also thought geopolitically, expecting the settlers “to provide a strategic buffer for the extended, exposed Kentucky frontier,” then threatened by Indians and the remaining British forts.
The problem arose later on. Although the confederation of Indian nations and tribes organized by the Shawnee chief, Tecumseh, collapsed with his death during the War of 1812, it did retard American settlement in the intervening years. Could the Northwest compete with other territories without slavery? In Ohio, moral opposition prevailed, although one prominent politician, John C. Macan, did anticipate the ‘popular sovereignty’ arguments of future Illinois senator Stephen A. Douglas. Even then, southern Illinois favored the repeal of the slavery exclusion clause; that part of the state would provide much of the support for Douglas’s future campaigns. Both southern Illinois and Indiana were settled in large measure by persons from the slave states; advocates for slave importation argued that “the Ordinance’s authority was contingent, not perpetual,” depending upon “the present will of the contracting parties.” “When the new states drafted their own constitutions, the United States could no longer claim authority under the ordinance to insist on the compacts without degrading the new states to a level of inequality.” These claims went nowhere in the courts, so in 1805, pro-slavers in Indiana, including territorial governor and future U. S. president William Henry Harrison, re-labeled slaves as “servants,” passing a state law titled “An Act concerning the introduction of Negroes and Mulattoes into this Territory.” Only the influx of settlers from free states undermined the Harrisonians and reversed their policy; arguing (as Gouverneur Morris and James Madison had done, a generation earlier) that slavery was antithetical both to natural justice and republicanism, anti-slavery Indianans repealed the Act in 1810.
In 1820s Illinois, “the slavery question emerged full-blown” in a struggle over whether to call a new state constitutional convention. Governor Edward Coles was anti-slavery but the pro-slavers, emboldened by Missouri’s defiance of Congress in refusing to expunge a clause in its constitution that prohibited the immigration of free blacks, pressed the ‘popular sovereignty’ argument with renewed intensity. While anti-slavery advocates cited the Northwest Ordinance as “a source of moral obligation” that “epitomized the wisdom and foresight of the Founding Fathers”—a “kind of higher law, a guide to right action”—the pro-slavery side appealed to frustration over the relatively slow rate of settlement in the Ordinance territories, in comparison to Kentucky and Tennessee, which had been admitted to the Union a generation earlier. More, “hard times in the aftermath of the 1819 crash emphasized the need for new men, new money, and new crops.” Neither side attempted to ascribe constitutional status to the Ordinance. Nonetheless, anti-slavery citizens won the day, although the arguments on both sides would be reprised thirty years later by Senator Douglas and Mr. Lincoln—the latter with considerably more logical coherence than his predecessors had mustered, basing his claim on deduction from the first principles of the Declaration of Independence. For their part, pro-slavers found their most important ally in U. S. Supreme Court Chief Justice Roger Taney, who not only affirmed that the Ordinance had no Constitutional status in Strader v. Graham (1850) but eventually (and infamously) denied that the Declaration principles had any validity at all.
As we know, the matter proved too contentious for peaceful resolution.
Note
- Montesquieu: The Spirit of the Laws, Part II, Book 11, Chapter 19.
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