Considering its pre-Constitution origins as the product of a weak legislature about to expire, the Northwest Ordinance was remarkable in its enduring contribution to the structure of American federalism. It was adopted by the Congress of the Articles of Confederation on July 13, 1787, in New York, even as state delegates were meeting in Philadelphia to draft the Constitution.
Most immediately, the law provided for the territorial government and transition to statehood of the 265,000 square miles north of the Ohio River to the Great Lakes and west to the Mississippi. Between 1803 and 1848 and following the procedures set out in the ordinance, 5 states were carved out of this territory—Ohio, Indiana, Illinois, Michigan, and Wisconsin.
For the longer term, it established the model for the future admission of additional states. This centered around the principle of interstate equality, bringing new states into the union as full-fledged partners with older states. The ordinance referred to a “compact” between the original states and the people and future states of the territory, avoiding a purely colonial relationship. Aspects of the equality principle were shortly incorporated into the Constitution, including the provisions of Article IV guaranteeing “full faith and credit” to the actions of each state and ensuring all citizens the same “privileges and immunities” given in individual states.
About half of the 2,600-word document outlined the arrangements for governing the region and the steps required to reach statehood. Congress was to appoint a territorial governor and three judges, serving collectively as the initial lawmaking body. The governor was given considerable power in military matters, to lay out counties and governmental townships, and to appoint local officials. Anticipating the eventual formation in the territory of between 3 and 5 states, the Ordinance provided general boundaries for three. Greater measures of self-determination would come with increased population. At a population of 5,000 free male adults, the entire territory or any part of it would get a popularly elected house of representatives (forming a general assembly with the governor and an appointed legislative council) and a nonvoting delegate to Congress. When it reached 60,000, a district could draft a state constitution and seek admission to the union.
In the areas of individual civil and criminal rights, the ordinance defined a number of protections for residents of the territory that were identical or similar to provisions written into the later Constitution, including religious freedom, writ of habeas corpus, jury trial, the prohibition of cruel and unusual punishment, compensation for the taking of private property, and the protection of private contracts. Also slavery was prohibited in the territory, although fugitive slaves or indentured servants escaping from the original 13 states could be returned to their owners.
Implementing the ordinance in the sixty years between its enactment and the formation of the last state in the region, Michigan in 1848, was a stormy process, often caught up in partisan battles. Republicans generally supported higher degrees of local control and a rapid transition to statehood. On the other hand, Federalists, fearful of the perceived chaos of frontier democracy, favored a go-slow approach. Federalist Arthur St. Clair, who served from 1787 to 1802 as the Northwest Territory’s first governor, sought to manage an orderly and gradual transition but was criticized by opponents as an arbitrary “colonial” leader. A periodic issue was the location of the boundaries between adjacent states; Ohio, the first state to be created in 1803, and Michigan Territory disputed their common border through the 1830’s.
The Northwest Ordinance was linked in its performance and effectiveness to the earlier Land Ordinance of 1785, passed by the Confederation Congress to deal with the organization and disposition of the vast lands between the Appalachians and the Mississippi. Mostly in the Northwest Territory region, they became the first public domain—lands acquired and controlled by the national government—after the Revolutionary War and the Peace Treaty with England. These lands originally were claimed by several of the established states, which soon ceded their interests to the national government. A major purpose of the 1785 Ordinance was to produce income from land sales to retire the war debt and provide other national revenue by regularizing the identification and ownership titles of individual properties.
The Land Ordinance established the system of rectangular land surveys now familiar to most of the continental United States, replacing the older, less precise method used in the eastern states of identifying properties by “metes-and-bounds.” Beginning in the Northwest Territory, surveys designated six-by-six square mile “townships,” each divided into 36 “sections” of 640 acres apiece, as the basic units of land measurement. One section in each township was earmarked for the support of state and local public education, a theme later picked up by the Northwest Ordinance of 1787 in language encouraging “schools and the means of education.” “Congressional” or survey townships in most of the Midwestern states, including those created out of the Northwest Territory, became the geographical basis for “civil” or governmental townships, the most local form of government in these states.
In combination, the 1785 and 1787 ordinances provided certainty and an organized framework for settling the new lands of the nation. The Land Ordinance contributed an orderly system for identifying, recording, and transferring property, ensuring clear title and enhancing private ownership. The Northwest Ordinance supplied the means of democratic governance for moving from territory to state, a process that was applied widely in later additions to the union.
Catherine Drinker Bowen, Miracle at Philadelphia: The Story of the Constitutional Convention, May to September, 1787 (Boston: Little, Brown, 1966); “Land and Liberty in American Society: The Land Ordinance of 1785 and the Northwest Ordinance of 1787,” Publius: The Journal of Federalism 18, no. 4 (Fall 1988): 1–31; and Peter S. Onuf, Statehood and Union: A History of the Northwest Ordinance (Bloomington: Indiana University Press, 1987).