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Congressional sovereignty: Imperialism in a
Republican Union
Casey Jack Musselman
James Madison University
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Congressional Sovereignty
Imperialism in a Republican Union
Casey J. Musselman
A thesis submitted to the Graduate Faculty of
JAMES MADISON UNIVERSITY
In
Partial Fulfillment of the Requirements
for the degree of
Master of Arts
Department of History
May 2014
ii
Dedication
For Ann
iii
Acknowledgements
I wish to acknowledge the support of Dr. Kevin Hardwick in the creation of this thesis. He taught
me how to be a better writer, thinker, researcher, and scholar. Any success in this endeavor has
his hand upon it. I also wish to thank Dr. Michael Gubser and Dr. Emily Westkaemper for their
support in writing this thesis. Their input was invaluable. They are the finest of scholars and
educators. Finally, I wish to acknowledge my classmates who critiqued my work, debated issues
with me, revealed flaws in my thinking, and supported me as friends. They are fine historians.
A special thanks to Dr. Peter S. Onuf. The sessions at Michael’s were productive and
entertaining. I would not trade them for the world. Great fun, buddy.
iv
Table of Contents
Dedication ................................................................................................................................ ii
Acknowledgements .................................................................................................................. iii
Table of Contents ..................................................................................................................... iv
Abstract .................................................................................................................................... v
Introduction .............................................................................................................................. 1
1. From Republican Theory to Imperial Rule .......................................................................... 16
2. The Northwestern Territories and Congressional Sovereignty in 1784 ............................... 41
3. The Land Ordinance of 1784 ............................................................................................... 67
4. The Northwest Ordinance of 1787 ....................................................................................... 82
Conclusion ............................................................................................................................... 106
Bibliography ............................................................................................................................ 115
v
Abstract
This thesis analyzes the creation of congressional sovereignty in the 1770s and 1780s.
Congressional leaders expanded the authority of the Continental Congress through a series of
resolutions and ordinances in order to incorporate the Northwestern Territories in to the union.
My sources included primary documents issued by Parliament and Congress. I also
researched the writings of various American and British theorists during the debate over
parliamentary rule and the rights of colonists to self-government. Also, by studying the
ordinances of the 1780s, I documented the expanding confidence and authority of Congress as
leaders gained control of the Northwest Territories.
I discovered that Britain’s Royal Proclamation of 1763 was an assertion of imperial
power over the thirteen American colonies, but more importantly was used as a model by
congressional leaders for their own Resolution of 1780. Congress issued the resolution as a
framework for incorporating the Northwestern Territories. The ordinances of 1784-5, and 1787
expanded and refined Congress’s sovereignty over the Ohio region as national leaders dictated
the conditions of statehood and controlled all aspects of government in the territory.
Congressional leaders rejected republican theories of self-determination in order to expand the
union.
Employing imperial sovereignty to expand a republican union calls into question the
concept of state sovereignty. The original thirteen states claimed sovereignty in the Articles of
Confederation drafted in 1776. However, subsequent actions by Congress and the states
challenged the existence of sovereignty at the state level. Congress asserted its own sovereignty
in the 1770s in order to settle border disputes between states, create new states, and protect
existing states from restive populations. Congressional leaders methodically worked to centralize
sovereignty in America at the expense of the states and territories before the drafting of the
Constitution in 1787. A fresh review of American federalism must be undertaken in light of the
events in the 1780s to refine the understanding of state sovereignty in American political theory.
Introduction
The constitutional theory of federalism was the basis for the United States
Constitution. The Federal government and the state governments each have areas of
authority to govern American citizens. The Constitution assigned specific rights and
authority to the Federal government, which included the right to print money, declare
war, negotiate treaties, and regulate commerce with foreign nations, as well as between
the states. The Tenth Amendment to the Constitution, drafted as part of the Bill of Rights
and adopted in the first Federal Congress, stated “The powers not delegated to the United
States by the Constitution, nor prohibited by it to the states, are reserved to the states
respectively, or to the people.”
1
These two principles are the foundation of American
federalism. Constitutional theorists refer to this concept as shared sovereignty, or dual
sovereignty. Each level of government is a sovereign within distinct domains.
However, this simple and orderly theory is misleading. American sovereignty is
not clear, distinct, or even split between the states and the Federal government. In fact,
the two levels of government are in contention over sovereign rule. The states and the
Federal government compete for ascendancy in governing the American people. Each
level of government seeks advantage and authority at the other’s expense. Sovereignty is
a zero-sum game in that, if one side gains authority, the other side loses it. Instead of dual
sovereigns as mentioned above, there is a never-ending debate or negotiation over
sovereignty in the United States.
1
Yale Law School, “Constitution of the United States,” Avalon Project, Accessed November 1,
2013. http://avalon.law.yale.edu/18th_century/preamble.asp.
2
This essay will show how congressional leaders laid the foundation of this debate
when they rejected the radical republicanism of the revolutionary period in the 1770s and
created congressional imperial rule in the 1780s. The idealistic, republican theory of self-
rule for local populations so eloquently stated in the 1770s, gave way to a centralized,
European theory of sovereignty that protected the union in the 1780s. Congressional
leaders applied the political lessons learned from the British Parliament in controlling an
empire. Congress did not let local populations in the territories distance themselves from
the central government or develop their own governing institutions. The Northwest
Territories were colonies that needed a firm hand to guide them to be republican states
that supported the union. Congressional leaders established new states in the Northwest
Territories through imperial rule with the intention of creating sovereign states equal to
the original thirteen states. Congress and the states held sovereignty. Congress took these
actions in the name of protecting the union by expanding it. America’s founders left
sovereignty undefined in the American union.
The historiography of American sovereignty has expanded as new research
highlighted various sources of American political theory. Historians replaced the
traditional history that established the constitutional convention of 1787 as the beginning
of American federalism and sovereignty. Historians such as Merrill Jenson, Jack Rakove,
and Peter Onuf analyzed the period covered by the Articles of Confederation, from 1776
to 1787, and drew different conclusions from their research. Merrill Jensen in his work
The New Nation (New York, 1950) focused on the period from 1781 – 1789 to analyze
the effects of the Articles on the states and their relationship with Congress. Jensen
described Congress as a creation of the states that maintained the states’ sovereignty. The
3
states, not Congress, tackled the problems of the confederacy during and after the war
and succeeded beyond what traditional histories credited to them. Jack Rakove in his text
The Beginnings of National Politics (New York, 1969) attributed prosecuting the war and
the competing politics of the various states and regions to the drafting of the Articles of
Confederation and the forming of a national government in the Constitution. The Articles
gave Congress a working experiment in shared sovereignty and nationalism that leaders
found lacking as a cohesive force to bind the union. Historian Peter Onuf, in his works The
Origins of the Federal Republic (Philadelphia, 1983) and Statehood and Union (Bloomington,
1987) identified western expansion, state creation, and border disputes among the states as the
foundation of nationalistic sovereignty. The states sought to replace the British imperial sovereign
with an American version that protected the states and guaranteed their land claims.
Historians
Jack Greene and John Phillip Reid analyzed existing constitutions, both
written and unwritten, as well as other institutions as sources for American political
theory. Greene in his work Peripheries and Centers (Athens GA, 1986) explored the
interplay of the British constitution, the colonial charters, and an emerging imperial
constitution in the eighteenth century and their influence on America’s constitution. Reid
looked to an ancient British constitution as a strong influence on America’s founders in
his work The Ancient Constitution and the Origins of Anglo-American Liberty (Dekalb, 2005).
Alison L. La Croix found American sovereignty in political ideology that reflected the
“intellectual endeavor” of America’s founders and their understanding of federalism, sovereignty,
and empire in her work The Ideological Origins of American Federalism (Cambridge MA, 2010).
All of these historians worked within the framework of a shift in political theory at the creation of
the American republic during the critical period of the 1770s and 1780s.
4
This essay finds more continuity in political ideology and constitutionalism during this
period. American imperial sovereignty did in fact, replaced British imperial sovereignty, as Peter
Onuf claimed in his works. This essay expands that finding to claim that state sovereignty was an
aberration during the period under study. As soon as the states enshrine their sovereign powers in
the Articles of Confederation, Congress begins the slow, methodical, process of claiming imperial
sovereignty at the expense of the states. Congress exploited the fears of the states to assert
sovereign authority. By the time of the constitutional convention, Congress established a
nationalistic, imperial sovereignty over the western lands that would compete with the states for
political authority over the entire union at the convention in 1787.
2
American sovereignty is even more unclear when one analyzes how eighteenth
century political theorists understood it and its application by American founders.
European states defined sovereignty as a centralized, national state. Sovereign
governments controlled the military, collected revenues, made treaties with other states,
and defined and defended the borders of the state. American leaders studied European
sovereignty and believed that if the United States were to survive, a national government
would not only need to be created, but also accepted by European powers on European
terms. As Eliga Gould wrote, “Americans believed that the only way to secure liberty for
themselves was by making peace with others. But to a greater degree than we often
realize, the peace that they sought reproduced key features of the European empires that
they otherwise hoped to replace.” In essence, American leaders had to apply the
sovereignty of a modern European state to the US to gain acceptance into international
agreements and trade. This was a problem for American leaders considering that the
2
Alison L. La Croix, The Ideological Origins of American Federalism, (Cambridge, MA: Harvard
University Press, 2010), 3-7.
5
original thirteen states claimed sovereignty of their own, a sovereignty that remained
undefined, and lacked even a general agreement on its application.
3
The debate over colonial American sovereignty was not an eighteenth century
development. Political authority was contentious from the creation of the first English
North American colonies in the early seventeenth century. However, in the seventeenth
century the English civil wars, the Interregnum, the restoration of the monarchy, and the
Glorious Revolution all preoccupied English political leaders. It was not until Parliament
abandoned “salutary neglect”-a term coined by mid-eighteenth century British statesman
Edmund Burke-that the issue of sovereignty came to the forefront of political debate.
4
The more assertive governance by Parliament began with the attempt to tax the American
colonies in the 1760s with the Stamp Act. This challenge to colonial self-government
drew an immediate and powerful protest from colonial leaders. It also began a cycle of
colonial legislation passed by Parliament, followed by protests from the American
colonists, and ended with a withdrawal of the offending legislation. Parliament’s
sovereignty was the central argument that led to the American Revolution. Colonial
leaders insisted that Parliament had no authority over the colonies and that the thirteen
American colonies answered directly to the King. According to American colonists,
Parliament was simply another local government completely separate from the colonies.
3
Eliga Gould, Among the Powers of the Earth, (Cambridge, MA: Harvard University Press,
2012), 4-5.
4
“Salutary neglect” was the undeclared policy of Parliament towards the American colonies in the
seventeenth and eighteenth centuries. Parliament did not strictly enforce its rule over the colonies, but
instead left the colonies to develop within the British Empire under loose guidance and oversight. Edmund
Burke coined the phrase in a speech in Parliament in 1775. For a full discussion of salutary neglect see
James Henretta, Salutary Neglect: Colonial Administration Under the Duke of Newcastle, Princeton:
Princeton University Press, 1972.
6
However, British leaders insisted that, since the Glorious Revolution of 1688, when
Parliament subsumed the king’s sovereignty, the “King-in-Parliament” was the sovereign
of Great Britain and all its colonies. Parliament controlled the colonies as the British
sovereign. Thus, colonial leaders and the British government could not agree on the
location and limits of sovereignty in the British Empire.
Generations of political theorists defined and redefined political sovereignty
according to the governments under which they lived. One of the earliest theorists of
sovereignty was sixteenth-century French philosopher and political theorist Jean Bodin
who first defined sovereignty as a modern political concept. He wrote, “Sovereignty is
the supreme and absolute power over citizens and subjects.” Bodin believed this power
was “absolute and perpetual”. He also stated that a sovereign “recognizes nothing, after
God, that is greater than himself.”
5
Bodin defined the absolutist theory of sovereignty that
placed power in the hands of a single man. The “Absolutist Theory” of sovereignty was
the justification for European monarchies well into the eighteenth century.
However, Bodin’s theory of absolute sovereignty was not without its problems.
Even in the sixteenth century, sovereignty was never absolute. Bodin dismissed legal
checks on a sovereign, but also admitted that the pressures of magistrates and the people
should limit an “absolute” sovereign. Bodin believed that kings were subject to the laws
of nature and fundamental law. Thus, as historian Julian Franklin wrote, Bodin defined
not a theory of absolute sovereignty, but a “theory of ruler sovereignty”, which stated that
the “higher powers of government” could not be shared or divided among several
5
Ken MacMillan, Sovereignty and Possession in the English New World: the Legal Foundations
of Empire, 1576-1640. (Cambridge: Cambridge University Press, 2009), 23.
7
agencies. A single individual or group must hold the powers of a sovereign, which
included appointing magistrates, approving and repealing laws, prosecuting wars, settling
appeals from lower magistrates, and the power of life and death. Whoever held those high
powers was still constrained by customary law. Bodin continued to develop his theory
until he rejected any direct challenge to sovereign rule from below. Bodin’s theory of
absolute sovereignty did not allow for the sharing of sovereignty or the distribution of
sovereignty, but it also did not mean a monarch was completely free of restraints.
6
In his work Leviathan, seventeenth-century English philosopher Thomas Hobbes
applied Bodin’s description of sovereignty more literally. Hobbes wrote, “There can
happen no breach of Covenant on the part of the Soveraigne [sic]; and consequently none
of his subjects.”
7
According to Hobbes, once a society created a monarchical
government, no one had the right to overthrow the sovereign or change the form of
government under an absolute monarch. The citizens or governing officials of a state
could not remove a sovereign because a sovereign could do no wrong.
During the English civil wars of the mid-seventeenth century, English writer
George Lawson challenged Bodin’s version of absolute sovereignty. Lawson published
his political treatise Politica Sacre et Civilis in 1660 and described a mixed form of
sovereignty in which the king and Parliament ruled together. Lawson stated a
fundamental difference from Bodin, According to Lawson, sovereign power or “real
majesty” as he called it, resided in the people. Lawson wrote, “there was a power of
6
Julian H. Franklin, “Sovereignty and the mixed constitution: Bodin and his critics,” in The
Cambridge History of Political Thought: 1450-1700, ed. J.H. Burns, (Cambridge: Cambridge University
Press, 1991), 299-309.
7
Thomas Hobbes, Leviathan, (1656, (chapter XVIII, paragraph 3).
8
kings, and also of Parliament severally, and a power of them jointly considered. We find
the real majesty in the people, and personal majesty in king and Parliament jointly.” The
king and Parliament shared “personal majesty” which they maintained as long as each
side acted within its proper jurisdiction. If one branch of the government exceeded its
authority, for example when English King Charles I attempted to rule without Parliament,
the people could withdraw the authority given to the entire government. As Julian
Franklin explains, “The personal majesty of a mixed constitution is dissolved entirely
upon the default of any of its parts.”
8
Lawson, like Bodin and Hobbes, believed that
sovereignty was indivisible, but if it was abused by any branch of a government, the
entire government lost its authority. However, Lawson did not believe that the structure
of government could change. The people could remove a person abusing his authority,
but not remove the position he held in a government. Lawson did not extend the
sovereignty of the people to include the ability to change the form of government.
John Locke studied Hobbes and Lawson’s works and expanded on their theories
by placing sovereignty squarely upon the citizens of a political society. As long as a
legislative body was acting within the assigned authority given it by the people, there was
no higher power than the government. When a government exceeded its authority:
There remains still in the people a supreme power to remove or alter the
[government] when they find the legislative act contrary to the trust
reposed in them. For all power given with trust for the attaining an end be
limited by that end, whenever that end is manifestly neglected or opposed
8
George Lawson, Politica Sacre et Civilis, (London, 1660), 148, Early English Books Online,
Accessed December 11, 2013,
http://eebo.chadwyck.com/search/full_rec?SOURCE=pgimages.cfg&ACTION=ByID&ID=12707196&FIL
E=../session/1386768823_28671&SEARCHSCREEN=CITATIONS&VID=66067&PAGENO=87&ZOO
M=FIT&VIEWPORT=&SEARCHCONFIG=var_spell.cfg&DISPLAY=AUTHOR&HIGHLIGHT_KEYW
ORD=param(HIGHLIGHT_KEYWORD).
9
the trust must necessarily be forfeited, and the power devolve into the
hands of those that gave it.
9
Locke expanded the sovereignty of the people to include replacing not only an abusive
monarch or parliament but of the governmental structure itself. Locke’s principles were
the political and legal justification for the American Revolution. The drafters of the
Declaration of Independence based their work upon the principles John Locke defined in
his Second Treatise on Government.
A legal scholar who redefined sovereignty to include the authorization of a
government by the citizens was eighteenth century English legal theorist William
Blackstone. American lawyers such as John Adams, James Wilson, and Thomas
Jefferson studied his works and especially his Commentaries on the Laws of England.
Blackstone firmly believed in the sovereignty of Parliament at the time of the American
Revolution. However, American colonial leaders used his writings to support their
arguments against parliamentary rule and as a source to create the Constitution.
Blackstone defined sovereignty as “a supreme, irresistible, absolute, uncontrolled
authority.”
10
He went on to describe it in a democracy when he wrote, “In a democracy
there can be no exercise of sovereignty but by suffrage, which is the declaration of the
people’s will…the selection of representation [is] the exercise of this sovereignty.”
11
Blackstone, like George Lawson a century before him, limited the sovereignty of the
people to changing the members of a government, not the structure of a government. He
9
John Locke, Political Writings of John Locke. Edited by David Wootton, (New York: Mentor
Books, 1993), 337.
10
Blackstone, 48-9.
11
Blackstone, 164-5.
10
firmly supported the English governmental structure of king-in-parliament when he
wrote, “Whenever also a question arises between two provinces in America or elsewhere,
as concerning the extent of their charters and the like, the king in his council exercises
original jurisdiction therein, upon the principles of feudal sovereignty.”
12
The “king in his
council” was King George III ruling in conjunction with Parliament. Blackstone’s phrase
“feudal sovereignty” described the absolute rule of a monarch that Bodin described
centuries before. Only supplications to a sovereign were permissible from “below” and
could sway a sovereign’s actions.
American colonial leaders defined sovereignty within the British Empire as
residing specifically with the king. Parliament had no part in ruling the colonies.
Benjamin Franklin wrote, “All the colonies acknowledge the king as their Sovereign: His
Governors [in the colonies] represent his Person. Laws are made by their Assemblies or
little Parliaments, with the Governor’s assent, subject to the king’s Pleasure to confirm or
annul them.”
13
By placing sovereignty solely with the king, the colonies claimed parity
with and independence from Parliament. According to American colonial leaders, the
sovereign king had many legislatures that were equal to each other and answered directly
to him. This concept made each colonial legislature simply one of many parliaments.
However, if as British leaders claimed, Parliament held sovereignty in partnership
with the king, then the colonies did not answer to the king alone. Parliament contended
that the king was only one component of British sovereignty that consisted of the king,
12
Blackstone, Supplement, v.
13
Jack P. Greene, Peripheries and Center: Constitutional Development in the Extended Polities of
the British Empire and the United States, 1607 – 1788, (Athens (GA): The University of Georgia Press,
1986), 119.
11
the House of Lords, and the House of Commons. No charter issued by the king alone
could supersede the entire government.
14
The colonies must submit to parliamentary
authority. The argument over the location of sovereignty was predicated upon
Blackstone’s – and Bodin’s - concept of sovereignty as indivisible. Indivisible but shared
sovereignty as in the British “king-in-parliament” model, or distributed sovereignty as in
the delegation of sovereign authority under a monarch were well-accepted theories.
However, a polity with two sovereigns was illogical. As Connecticut clergyman and
patriot Moses Mather wrote, “an imperium in imperio, one supreme power within another
[was] the height of political absurdity.” Colonial leaders contended that the king alone
was sovereign, and that there was no danger of two sovereign powers in the same state.
15
The debate over the location of sovereignty was not simply a dry constitutional
argument for political theorists. If the king was the sovereign, as American leaders
contended, then he held power – not just over the colonies – but over Parliament as well.
A sovereign king threatened the gains made by Parliament at the Glorious Revolution. If
George III ruled over all the local legislatures, including Parliament, then he could
exercise an authority not seen since Charles II. Parliament would be subservient to an
absolute monarch and the gains made at the Glorious Revolution forfeited. As British
historian H.T. Dickinson wrote, “Fears of the kind of political instability experienced in
the seventeenth century had generated the widely held belief that…there had to be a final
authority against whose decisions there could be no appeal…this authority should rest
with the legislature which made laws and raised taxes.” The alternative to this stability
14
Greene, 99-100.
15
Greene, 138.
12
was unthinkable to British leaders. As Dickinson reasoned, “If Parliament was not
sovereign over the Atlantic colonies, then Britain had no constitutional authority to
regulate Atlantic commerce in her own interests and might suffer a severe blow to her
prosperity, power, and status.” American claims to independence from Parliament
threatened a return of Britain to an older version of the English constitution that placed
the colonists and British subjects under a sovereign monarch who was constrained only
by common law and immemorial rights. This concept threatened the existence of the
British Empire.
16
The indivisibility of sovereignty was the basis for all of the above arguments.
Blackstone’s “supreme, irresistible, absolute, uncontrolled authority” was still the agreed-
upon definition of sovereignty. The debate between the colonists and the British
government was over who held that authority. This debate led to the thirteen American
colonies declaring their independence in 1776.
Declaring independence did not clarify the issue of sovereignty in the American
colonies. From the beginning of the War for Independence, American leaders struggled
over the location and limits of political authority. Thomas Jefferson addressed the issue
of sovereign rule in The Declaration of Independence when he wrote, “That these United
Colonies are, and of Right ought to be Free and Independent States; … and that as Free and
Independent States, they have full Power to levy War, conclude Peace, contract Alliances,
establish Commerce, and to do all other Acts and Things which Independent States may of right
16
H.T. Dickinson (ed), “Britain’s Imperial Sovereignty: The Ideological Case Against the
American Colonists,” Britain and the American Revolution, (London: Longman, 1998), 81-82.
13
do.”
17
This passage highlighted the challenge of assigning sovereignty. Did this passage create a
single union of states where the Continental Congress held sovereignty or did it create thirteen
independent sovereigns out of the colonies in rebellion? The phrase “free and independent states”
suggested each state held these rights. Jefferson’s repeated reference to the states in the plural
also suggested thirteen sovereign states. In addition, Article 1 of the 1783 Treaty of Paris refers to
the states in the plural and lists each one when acknowledging their independence.
18
However,
there are several documents in support of a union, the first being the Declaration itself, which
used capitals in the title “United Colonies” and suggested a formal union with a proper name. The
resolution for independence submitted to Congress by Richard Henry Lee on June 7,
1776 called for “a plan of confederation be prepared and transmitted to the respective
Colonies for their consideration and approbation.”
19
Congress sought to replace the
British Empire with a new American union. Two other defining documents in American
history support the contention that the Declaration created a union. The first was the US
Constitution that opened with the phrase “We, the people of the United States, in order to
form a more perfect Union.”
20
The phrase “more perfect union” suggested the existence
of a union prior to the drafting of the Constitution.
Also in 1776, the American congress drafted the Articles of Confederation, which
created a specific role for Congress while leaving the majority of sovereign authority to
17
National Archives, “Declaration of Independence”, Charters of Freedom, Accessed October 29,
2013, http://www.archives.gov/exhibits/charters/declaration_transcript.html.
18
Yale Law School, “The Definitive Treaty of Peace 1783,” Avalon Project, Accessed January
14, 2014. http://avalon.law.yale.edu/18th_century/paris.asp.
19
Yale Law School, “Journals of the Continental Congress – Resolution of Richard Henry Lee;
June 7, 1776,” Avalon Project, accessed January 14, 2014.
http://avalon.law.yale.edu/18th_century/contcong_06-07-76.asp.
20
Yale Law School. “Constitution of the United States,” Avalon Project, accessed November 1,
2013, http://avalon.law.yale.edu/18th_century/preamble.asp.
14
the states. Article II stated, “Each state retains its sovereignty, freedom, and
independence, and every power, jurisdiction, and right, which is not by this
Confederation expressly delegated to the United States, in Congress assembled.” This
article seemed to support the creation of independent state sovereigns in the Declaration,
but also delegated specific authority to the Continental Congress. Article VI of the
Articles stated that Congress held the authority for establishing embassies, negotiating
and approving treaties, and declaring and pursuing wars.
21
In a prelude to the
Constitution, the Articles simply assigned specific responsibilities to Congress and left
the rest to the states. The clear definition of congressional sovereignty contrasted with the
ambiguity of state sovereignty. This suggested that Congress employed the sovereignty of
a modern European state as a guide in the Articles. However, the states would not accept
a centralized European state as the model for the United States, so congressional
representatives acknowledged undefined sovereignty in the states and specific limitations
on congressional authority.
The strict limitations on Congressional sovereignty, and how congressional
leaders circumvented these limitations, are the subject of this essay. Congress prosecuted
the War for Independence under severe restrictions on raising funds and troops as it could
only make requests to the states for money and men. The states maintained their
sovereignty at the expense of Congress. After the war ended in 1783, congressional
leaders expanded the authority of Congress while formulating a plan of incorporation for
the Northwest Territories consisting of the lands between the Ohio and the Mississippi
21
Yale Law School. “Articles of Confederation.” Avalon Project. Accessed August 4, 2013.
http://avalon.law.yale.edu/18th_century/artconf.asp.
15
Rivers. Once the states surrendered these lands to congressional authority Congress
expanded its sovereignty through the organization, political principles, and governing
institutions dictated to the new territories. Congress planned for the expansion of the
union into the Northwest Territories with explicit directives and imperial sovereign
control over the settlers and lands across the Ohio River. The US Congress assumed the
role of an imperial sovereign over the territories and took on the role of a centralized
government that a decade before, drove colonial leaders to revolt against Great Britain.
Chapter One
From Republican Theory to Imperial Rule
The relationship between Parliament and the American colonies rapidly deteriorated in
the 1770s. The decade began with the Boston Massacre of 1770 when British soldiers killed five
colonial protestors. The Gaspee affair followed in 1772 when colonials boarded, looted, and
burned a British warship grounded off the coast of Rhode Island. However, it was the Boston
Tea Party in December of 1773 that drove relations to their lowest point and set the colonies on a
path towards independence. Parliament’s passage of the Intolerable Acts in 1774 in response to
the Tea Party motivated American colonists to call for a continental congress in late 1774.
1
The
provincial colonial leaders had to overcome jealousies and animosity among colonies to consider
a union – even a weak one.
2
However, the Continental Congress that met in September of 1774
quickly developed its authority and power. By the end of the decade, Congressional leaders had a
clear understanding of the role of Congress in the American union. Between 1774 and 1780, the
Continental Congress redefined its role from an unauthorized and powerless congress to a
national legislature employing imperial sovereignty in the territories.
After the French and Indian War ended in 1763, Parliament attempted to exercise–or
expand according to colonial leaders–its authority over the American colonies. This attempt to
change the relationship between the colonies and the metropolitan center forced American leaders
to reconsider imperial rule, local governance, and the relationship between a government and the
citizenry. Colonial leaders like James Otis and John Adams drafted legal tracts based on the
1
The Intolerable Acts or–as Parliament referred to them, the “Coercive Acts” –were four acts
passed by Parliament in early 1774. The acts closed Boston Harbor, placed Massachusetts under direct
control of the British government, allowed the royal governor to move trials to Great Britain, and gave the
governor the authority to confiscate public buildings to house British soldiers. A fifth act - the Quebec Act–
did not directly punish Boston, but still inflamed American colonists by expanding the colony of Quebec
and supporting the Catholics of Quebec in the exercise of their faith.
2
Jack N. Rakove, The Beginnings of National Politics, (New York: Alfred E. Knopf, 1979), 22-6.
17
British constitution that defended the rights of Americans within the British Empire.
3
There was
no attempt or even consideration of independence as colonists argued their constitutional rights as
proud subjects of the British Empire.
American leaders declared that Parliament could not legislate for the colonies without
representatives from America. Parliamentarians rejected that argument and passed The
Declaratory Act of 1766 which stated, “That the said colonies and plantations in America have
been, are, and of right ought to be, subordinate unto, and dependent upon the imperial crown and
parliament of Great Britain.”
4
Parliamentary leaders held that imperial sovereignty resided in
Parliament alone and its authority was without challenge by the colonies. The debate between
American and British leaders in the 1760s concerned British constitutional theory, English
Common law, and the legal rights of British subjects.
5
By the early 1770s, American colonial
leaders challenged British imperial rule with republican concepts of governance and natural rights
that lent support to calls for independence.
I
Before analyzing the writings of colonial leaders, it is important to review the concept of
imperial sovereignty as exercised by Great Britain in the late eighteenth century. King George III
3
For examples of American essays drafted during the debates, see James Otis, A Vindication of
the Conduct of the House of Representatives (1762) and The Rights of the British Colonies Asserted and
Proved (1764). John Adams wrote Instructions of the Town of Braintree to Their Representative (1765) as
instructions to the delegates to the General court from Braintree, MA.
4
Yale Law School, “Great Britain: Parliament - Declaratory Act; March 18, 1766”, Avalon
Project, Accessed November 9, 2013. http://avalon.law.yale.edu/18th_century/declaratory_act_1766.asp.
5
There are many texts that document the debates between the British leaders and American
colonists. For an analysis of the British opinion, see H.T. Dickinson (ed.), Britain and the American
Revolution (London: Longman, 1998). Sources for the debates during the 1750s and 60s include Bernhard
Knollenberg, Origin of the American Revolution: 1759-1766 (New York: MacMillan, 1960), and John R.
Galvin, Three Men of Boston (Washington: Brassey’s, 1976). For a monograph on the Stamp Act,
commonly believed to be the beginning of the American Revolution, see Edmund S. & Helen M. Morgan,
The Stamp Act Crisis (New York: Collier Books, 1953). For a study of the 1770s and American Revolution
see John Ferling, Setting the World Ablaze (Oxford: Oxford University Press, 2000), Pauline Maier,
American Scripture (New York: Vintage Books, 1997), and Gary B. Nash, The Unknown American
Revolution (New York: Viking, 2005).
18
issued The Royal Proclamation of 1763 after defeating the French in the Seven Years War. The
peace treaty that ended the war gave Britain control of the colonies of Quebec, Florida, and
Grenada, as well as the unchartered lands of Canada and the land from the Appalachian
Mountains to the Mississippi River. Britain moved quickly to establish rule over the vast
territories and consolidate its North American empire. The proclamation sought to install British
governments over the former French and Spanish colonies and maintain peace with the various
Indian tribes of eastern North America.
6
The language of the proclamation revealed Parliament’s confidence in Britain’s imperial
sovereignty. British leaders first addressed the established colonies of Quebec, Florida, and
Grenada. The proclamation identified the boundaries of each colony, split Florida into two
colonies, and added lands annexed by Britain. The matter-of-fact, almost casual language used in
this section of the proclamation revealed the confidence, or possibly arrogance, of an imperial
giant. The repeated usage of the phrase “We have thought fit…” makes the passage sound like a
subject beseeching a monarch rather than as monarch dictating imperial policy. This language
hides the imperial might Britain employed to annex islands and lands adjacent to the new
colonies in order to consolidate its hold on North America. The text read:
We have thought fit…to put all that Coast, from the River St. John's to Hudson's
Streights [sic], together with the Islands of Anticosti and Madelaine, and all other
smaller Islands lying upon the said Coast, under the care and Inspection of our
Governor of Newfoundland. We have also…thought fit to annex the Islands of
St. John's and Cape Breton, or Isle Royale, with the lesser Islands adjacent
thereto, to our Government of Nova Scotia. We have also…annexed to our
Province of Georgia all the Lands lying between the Rivers Alatamaha and St.
Mary's.
7
6
Yale Law School, “The Royal Proclamation: October 7, 1763,” Avalon Project, Accessed
November 25, 2013, http://avalon.law.yale.edu/18th_century/proc1763.asp.
7
Yale, “Royal Proclamation”.
19
There was no mention of local populations or the status of Indian tribes living in these areas.
British leaders extended the dominion of Britain to claim land that benefited the empire.
The proclamation next addressed the issue of local government. The important point in
the following passage was that there was no mention of the current colonial governments. Spain
controlled Florida for centuries before surrendering it to Britain. Quebec was a French Catholic
province. There was no attempt by Britain to rule through the established governments in the
colonies. The wording of the passage insinuated that the colonies were without legitimate
governance and existed in a state of nature. There was no mention of existing governmental
institutions or enlisting the support of local leaders. As conquered colonies, Parliament did not
find any value in co-opting functional institutions or powerful locals to maintain governmental
authority.
We have thought fit to publish and declare, by this Our Proclamation, that We
have…given express Power and Direction to our Governors of our Said Colonies
respectively, that so soon as the state and circumstances of the said Colonies will
admit thereof, they shall, with the Advice and Consent of the Members of our
Council, summon and call General Assemblies within the said Governments
respectively, in such Manner and Form as is used and directed in those Colonies
and Provinces in America which are under our immediate Government.
8
The closing sentence directed the governor to establish a government “in such Manner and Form
as is used and directed in those Colonies and Provinces in America” was telling. Britain would
install local assemblies founded upon the same principles used in Britain’s other North American
colonies.
By 1763, Britain possessed colonies from Hudson Bay to the Caribbean. The Privy
Council had a wealth of experience in creating and administering colonies across the Atlantic
Ocean and had a clear understanding of imperial sovereignty and its application in administering
8
Yale, “Royal Proclamation”.
20
foreign colonies. Parliament understood the tasks necessary to establish new colonies and
completed those tasks with ruthless precision.
The proclamation assigned control of lands to the governors and gave them the power to
adjudicate any disagreements over title to lands. This was an important power to wield where a
clear title to land was difficult for settlers to obtain. In addition, the governors of all North
American colonies distributed land bounties owed to members of the military who served in the
Seven Years War. The proclamation included a limitation on the governors’ power. Parliament
banned colonial governors from assigning ownership of lands to settlers on the western side of
the Appalachian Mountains.
And whereas it is just and reasonable, and essential to our Interest, and the
Security of our Colonies, that the several Nations or Tribes of Indians with whom
We are connected, and who live under our Protection, should not be molested or
disturbed in the Possession of such Parts of Our Dominions and Territories as,
not having been ceded to or purchased by Us, are reserved to them.[We declare]
that no Governor or Commander in Chief in any of our Colonies…do presume,
upon any Pretence [sic] whatever, to grant Warrants of Survey, or pass any
Patents for Lands beyond the Bounds of their respective Governments.
9
This limitation was the most troubling for American settlers and directly contributed to the
colonists’ protests against Britain. The phrase “essential to our interest” at the start of this passage
justified the ban on settlements in the west. British leaders framed every action and decision in
terms of what was best for Britain. The welfare of colonists and Indian tribes were of lesser
concern to Parliament. Historians portrayed the proclamation as a protection for the Indians
against settlers’ encroaching on Indian lands. However, British leaders viewed the welfare of the
Indians primarily within the context of the good of the empire. British leaders wanted peace and
stability in the empire because Britain could not afford a war with Indians in North America.
Protecting the Indian tribes was not a goal in itself, but it served Britain’s goal of a stable empire.
9
Yale, “Royal Proclamation”.
21
That is not to say that Britain would close off the west for all time. As historian Colin G.
Calloway wrote in his study of Native Americans in 1763, “Westward expansion would occur,
the [British] said, but it would follow a measured British pace, not a frantic American one, and it
would be checked by clear boundaries dividing colonial settlers and Indian nations.” Segregation
was a more effective policy than integration. British officials understood the power of maps,
surveys, and clearly delineated boundaries in supporting the peaceful establishment of colonies.
Controlled settlement would benefit Native Americans and settlers, but mostly, Britain.
10
Britain’s authority to make the proclamation was addressed in the phrase “[Indians]
should not be molested or disturbed in the Possession of such Parts of Our Dominions and
Territories as, not having been ceded to or purchased by Us, are reserved to them.”
11
The Indian
lands were part of Britain’s “Dominions”. The use of the term “dominions” revealed British
leaders advanced theory of imperial rule. From the beginning of European settlement of the
Americas in the sixteenth century, monarchs attempted to define and reconcile the two concepts
of imperium (sovereignty) and dominium (property). Imperium was political or imperial rule over
a people or society. Dominium was rule over the land. The English never conquered the Native
American tribes. How could a monarch arbitrarily apply his sovereignty to a foreign people? In
addition, if Native Americans populated the land first, how could a monarch impose dominium
over their land?
12
By the middle of the eighteenth century, British leaders set aside such legal
conundrums and claimed that the Indians of the west were “under our Protection” because they
were part of Britain’s dominium.
13
10
Colin G. Calloway, The Scratch of a Pen: 1763 and the Transformation of North America,
(Oxford: Oxford University Press, 2006), 92.
11
Yale, “Royal Proclamation”.
12
David Armitage, The Ideological Origins of the British Empire, (Cambridge: Cambridge
University Press, 2000), 63, 96-8.
13
Several texts explore the imperial debates concerning sovereignty around the Atlantic. Lauren
Benton, A Search for Sovereignty: Law and Geography in European Empires, 1400-1900, (Cambridge:
Cambridge University Press, 2009; Anthony Pagden, Lords of all the World: Ideologies of Empire in
22
The proclamation addressed the issue of dominium a second time. It also hinted at
sovereignty over the Indians of the west. After banning governors from administering lands
outside their colonial boundaries, the proclamation stated:
And We do further declare it to be Our Royal Will and Pleasure, for the present
as aforesaid, to reserve under our Sovereignty, Protection, and Dominion, for the
use of the said Indians, all the Lands and Territories not included within the
Limits of Our said Three new Governments.
14
Britain reserved the lands beyond the Appalachians “for the use of the said Indians”. The Indian
tribes of the west were under British protection and were part of Britain’s dominions. This
statement implied that Native Americans no longer held their own sovereignty because they did
not own the land on which they lived. Native Americans lost their property rights. Without
control of their property rights, their sovereignty came into question. Britain’s imperial power
extended to all peoples and lands in North America to the Mississippi River.
The application of British imperium and dominium was not a simple imperial land grab
by a European monarch. The establishment of British sovereignty over Native Americans also
served a practical purpose. By asserting sovereignty over the Indians of the west, Britain could
legally protect the tribes. As the Indians’ sovereign, British leaders were obliged to use all means
to safeguard Indian lands and livelihood. In effect, British leaders claimed control over all the
lands and peoples of North America to the Mississippi River. The King became the arbiter of any
disagreements that occurred because all the people of the area were under his authority. Settlers
Spain, Britain and France c.1500-c.1800, (New Haven: Yale University Press, 1998); and David Armitage,
The Ideological Origins of the British Empire, (Cambridge: Cambridge University Press, 2000), all deal
with the ideological debates between the European empires during the Atlantic period between 1500-1800
ad. Imperial leaders made religious, constitutional, and racial arguments to justify the establishment of
colonies in the Americas.
14
Yale, “Royal Proclamation”.
23
could not claim land in the west, since Indians could only surrender land to the crown or its
agents.
15
The proclamation of 1763 was the act of an imperial giant that controlled half of North
America and much of the Caribbean Islands. Parliament ruled over the colonies and dictated their
relationship with the imperial center. Britain also defined property ownership, settlement, trade,
Native American relations, and colonial government all in terms of benefiting the British Empire.
It radically changed the relationship between Great Britain and North American Indian tribes as
Britain assumed sovereignty over western tribes to protect Indians and their lands. The battles
between Indians and British forces during and after the Seven Years War–most notably Pontiac’s
War of 1763, would end with the tribes placed under the protection of British law and force. The
Royal Proclamation of 1763 made British imperial sovereignty the absolute law of the land.
16
II
Britain’s attempts at imperial rule over the American colonies led to protests and
pamphlets attacking Parliament’s rule. A pivotal year for American political theories was 1774. It
was in this year that colonial leaders drafted some of the most eloquent and expansive concepts of
republican theories of government. While many colonists wrote essays protesting the actions of
Parliament, James Wilson, John Adams, and Thomas Jefferson produced three of the most clear
and eloquent documents describing the relationship between a government and the governed.
They employed the theories of Locke, Montesquieu, and Rousseau to attack Parliament’s
expansion of imperial rule and to protect local governance based on natural rights.
17
The
15
Calloway, 93, 97.
16
Stuart Banner, How the Indians Lost Their Land, (Cambridge (MA): Harvard University Press,
2005), 92-3.
17
See John Locke’s The Second Treatise of Civil Government (1690), Jean Jacques Rousseau’s
The Social Contract (1762), and Baron de Montesquieu’s The Spirit of the Laws (1752) for examples of the
political theories that influenced American political writers.
24
constitutional arguments made by Otis and Adams in the 1760s evolved into theoretical
arguments about the nature of governance in the 1770s by revolutionaries like Wilson and
Jefferson. John Adams, due to his legal and theoretical brilliance, was capable of arguing a
constitutional argument in the 1760s and then shifting to a natural rights argument in the 1770s.
The first of the writers, James Wilson, emigrated from Scotland in 1765 and tutored
students in Philadelphia before studying law under John Dickinson. He served on the local
committee of safety in 1774 and represented Cumberland County to the first provincial
convention in Pennsylvania. It was while he was on the committee of safety that he published a
pamphlet that defined his political philosophy. Wilson’s pamphlet stated that all political power
derived from the people and the people must have representation in a government for that
government to be legitimate.
18
Wilson began by restating John Locke’s theory of natural rights. He stated three times
that the consent of the people was required to legitimize any government.
All men are, by nature, equal and free: no one has a right to any authority over
another without his consent: all lawful government is founded on the consent of
those who are subject to it: such consent was given with a view to ensure and to
increase the happiness of the governed, above what they could enjoy in an
independent and unconnected state of nature. The consequence is, that the
happiness of the society is the first law of every government.
19
Wilson went on to describe the ideal state of British liberty. He stated the fundamental
importance of a government obtaining the consent of the government. Without the consent of the
people, a government was not legitimate. Wilson also identified one of the most significant
problems of early republicanism. Who was qualified to vote? Wilson appeared to state that all
members of a society must freely elect their representatives when he wrote, “British liberty, it
18
University of Pennsylvania, “James Wilson (1742-1798)”, Penn Biographies, Accessed
November 9, 2013, http://www.archives.upenn.edu/people/1700s/wilson_jas.html.
19
Kermit L. Hall and Mark David Hall (eds), Collected Works of James Wilson, Indianapolis:
Liberty Fund, 2007, Accessed October 17, 2013, http://oll.libertyfund.org/title/2072/156475.
25
was thought, could not be effectually secured, unless those who made the laws were freely, and
without influence, elected by those for whom they were made.”
20
However, Wilson immediately
undercuts his own statement by qualifying who was qualified to vote by limiting enfranchisement
when he wrote, “Upon this principle is reasonably founded the maxim in law—that every one
[sic], who is capable of exercising his will, is party, and presumed to consent, to an act of
parliament.”
21
Wilson did not elaborate on who was “capable of exercising his will”. Defining
who was capable of electing representatives was contentious during the American Revolution.
British leaders identified the problem with Wilson’s theory and employed it against the colonists’
arguments about “no taxation without representation”. Americans could not participate in
elections to Parliament due to the distance between the colonies and Great Britain. British
statesman and political theorist Edmund Burke gave a speech in Parliament in 1775 where he
attacked Wilson’s point about the colonists being capable of representation in Parliament due to
the slow nature of eighteenth century travel and communications. Burke stated, “Three thousand
miles of ocean lie between you and [the colonists]. No contrivance can prevent the effect of this
distance, in weakening government. Seas roll, and months pass, between the order and the
execution; and the want of a speedy explanation of a single point, is enough to defeat a whole
system.”
22
Parliamentary leaders made a logical case that including colonists in governance was
simply not feasible due to the inability of colonists to exercise their will in a timely fashion.
Wilson’s next point concerned the act of expatriation. He analyzed the rights of settlers
who left Britain to immigrate to foreign lands. Wilson believed that American settlers maintained
their rights under the British crown when they migrated to North America. He wrote, “Is British
freedom denominated from the soil, or from the people of Britain? If from the latter, do they lose
20
Hall, Wilson.
21
Hall, Wilson.
22
Constitution.org, “Speech on Conciliation with America: Edmund Burke, March 22, 1775,”
Primary Sources, Accessed November 9, 2013, http://www.constitution.org/primarysources/burke.html.
26
it by quitting the soil? Do those, who embark, freemen, in Great Britain, disembark, slaves, in
America?” Wilson concluded his point by stating, “From hence it undeniably appears, that
parliamentary authority is derived solely from representation—that those, who are bound by acts
of parliament, are bound for this only reason, because they are represented in it.”
23
Wilson
connected representation with legitimate government based on a republican theory of government
that undercut the authority of Parliament in the colonies.
Wilson concluded his pamphlet with the demand that “The superiority of Great Britain
over the colonies ought, therefore, to be rejected; and the dependence of the colonies upon her, if
it is to be construed into ‘an obligation to conform to the will or law of the superiour [sic] state,’
ought, in this sense, to be rejected also.”
24
James Wilson wrote as an American patriot who
protested against the abuses of an imperial government. He believed in the purity of republican
theory as expressed by John Locke. Wilson was not a radical but was revolutionary in his
thought, in that, the American colonies should be free of Parliament and Great Britain’s rule. The
colonies had a right to govern themselves through their own representatives.
Another essayist writing about republican theory in the 1770s was John Adams. Adams
attended Harvard College before graduating in 1755. He practiced law before becoming involved
in the revolutionary cause and serving as a delegate to the Continental Congress. Adams was a
brilliant legal and constitutional theorist who drafted the 1780 Massachusetts State Constitution,
the oldest active constitution in the world. His writings concerning governance, constitutions, and
republics remain defining documents of American political theory.
25
In 1774 and 1775, John Adams wrote a series of essays responding to loyalist Daniel
Leonard. Under the name “Massachusettensis”, Leonard had published his own essays defending
23
Hall, Wilson.
24
Hall, Wilson.
25
Miller Center, “John Adams: Life Before the Presidency”, American President: A Reference
Resource, Accessed November 9, 2013. http://millercenter.org/president/adams/essays/biography/2.
27
Parliament’s rule over the American colonies. Adams published his works to refute each point
made by Leonard. As C. Bradley Thompson, the editor of Adams’ essays wrote, “Historians have
long recognized the importance of Adams’s Novanglus letters to the Revolutionary cause. They
were not only a close, point-by-point refutation of Leonard’s argument, but they represent the
most advanced Patriot argument against British imperial policy.”
26
Adams answered the question,
“Does the authority of Parliament extend to the colonies?”
27
Adams, like James Wilson, focused
on the relationship between Great Britain and the American Colonies and based his arguments on
republican theory.
In Adams’s second essay, he addressed the revenue bills passed by Parliament in part to
pay the salaries of colonial officers. It was common practice for colonial legislators to pay the
salaries of governors and other officers of the colony. This kept the officers accountable to the
citizens of the colonies through their representatives. If Parliament paid the salaries of these
colonial officers, they could act with impunity towards the legislatures and thus, the people. It
would remove the accountability of crown-appointed officials to the legislatures. Adams
understood the importance of forcing governmental leaders to answer to the legislatures of their
respective states. Adams predicted the results of colonial officials paid by the crown, “This would
gratify [Massachusetts Governor] Bernard’s avarice; and then, it would render him and all other
governors, not only independent of the people, but still more absolutely a slave to the will of the
minister.”
28
Any official who could act independently of the people’s representatives could abuse
the powers of their position to the detriment of the citizens and the colony. Adams concluded his
point by contrasting the independence of colonial officers with that of the people. He wrote,
26
Dr. Leonard is a political science professor who studies ideas within political movements and
writings. His statement concerning Adams writings is from a legal and ideological perspective.
27
Liberty Fund, “Novanglus,” Online Library of Liberty, Accessed November 9, 2013,
http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=592&chapter=76840&layout
=html&Itemid=27.
28
Liberty, “Novanglus”.
28
“There are but two sorts of men in the world, freemen and slaves. The very definition of a
freeman is one who is bound by no law to which he has not consented. Americans would have no
way of giving or withholding their consent to the acts of this parliament, therefore they would not
be freemen.”
29
Parliament could pass laws for the colonies and colonial governors could
implement those laws with impunity. Local legislatures would be powerless without controlling
the salaries of governmental officers.
Adams applied the philosophy of Jean-Jacques Rousseau, a nineteenth century Genevan
philosopher who wrote about political leadership and its relationship to the citizenry of a society.
In 1762, Rousseau published Of the Social Contract or Principles of Political Right. In his first
book, he analyzed the relationship between leaders with absolute authority and the people of a
society. Only the people whom he served could legitimize a political leader. Political authority
must come from the citizenry of a society or there was tyranny and slavery. Rousseau wrote:
Finally, it is an empty and contradictory convention that sets up, on the one side,
absolute authority, and, on the other, unlimited obedience…So, from whatever
aspect we regard the question, the right of slavery is null and void, not only as
being illegitimate, but also because it is absurd and meaningless. The words slave
and right contradict each other, and are mutually exclusive.
30
Adams employed Rousseau’s republican theory to defend the rights of colonists against the
usurpation of power by Parliament.
In the third Novanglus essay, Adams expanded upon his earlier descriptions of the
relationship of Parliament and the colonies. He stated the belief held by British officials that
Parliament was the “only supreme, sovereign, absolute, and uncontrollable legislative over all the
colonies”, and then refuted that belief when he wrote:
But, at the same time, they know that, in their own opinions, and in the opinions
of all the colonies, parliament has no authority over them, excepting to regulate
29
Liberty, “Novanglus”.
30
Constitution.org, “The Social Contract: Book 1,” Jean-Jacques Rousseau, Accessed November
9, 2013, http://www.constitution.org/jjr/socon_01.htm.
29
their trade, and this not by any principle of common law, but merely by the
consent of the colonies…therefore, they have as good a right to charge that
minister, Massachusettensis, and the whole army to which he has fled for
protection, with treason and rebellion.
31
The relationship between the colonies and Parliament was consensual and equal in political
power. The colonies consented to allow Parliament to regulate trade for the good of the empire.
By challenging the authority of the colonies, Leonard was challenging the imperial law of Great
Britain. Adams employed this logic to turn the charge of treason around when he declared that
Massachusettensis–Leonard–was treasonous in challenging historical imperial rule.
Adams returned to the analogy employed by Rousseau. Republican theory dictated that
the people must choose, or at least authorize through some means, their political leaders. Adams
wrote, “This they thought a plan to enslave them; for they uniformly think that the destruction of
their charter, making the council and judges wholly dependent on the crown, and the people
subject to the unlimited power of parliament as their supreme legislative, is slavery.”
32
To ignore
the people of a political society in governance was to invite tyranny, abuse, and “slavery”.
In the seventh Novanglus essay, Adams made a broad, sweeping statement about political
representation. He stated, “The constitution requires that every foot of land should be represented
in the third estate, the democratical [sic] branch of the constitution. How many millions of acres
in America, how many thousands of wealthy landholders, have no representatives there?”
33
This
statement is instructive for two reasons. Firstly, Adams claimed that “millions of acres in
America” had no representation in Parliament. Did this include the Indian lands to the west of the
colonies? Did this include the settlers who violated the Proclamation of 1763 and its closure of
the lands west of the Appalachian Mountains to settlement? Was this strictly the lands of the
31
Liberty, “Novanglus”.
32
Liberty, “Novanglus”.
33
Liberty, “Novanglus”.
30
thirteen colonies? The second point in this statement seemed to answer the first, but it was not
clear. Adams mentioned “wealthy landowners” as an unrepresented group. While this could be
simply a case of Adams selecting an example for his argument, it is more likely that he believed
that “wealthy landowners” were the ones that Parliament’s actions reduced to “slavery”. Adams
distinguished his own class from the rest of Americans and Indians, because he believed that his
class was the ruling class. Parliament’s actions went against natural law and republican theory
because wealthy landowners lost their political rights.
Adams’ final Novanglus essay established the legal justification for his claims of
independence from Parliament and the King. He compared the Native American tribal rulers of
early North American history to King George III. Adams portrayed a decidedly romantic version
of the settling of North America by Europeans. In his description, European settlers arrived on the
shores of North America and negotiated for lands with local tribes. The purchase of lands was
consensual and between even partners who could act independently and without coercion. Adams
stated, “Our ancestors…honestly purchased their lands of the natives…There is no fundamental
or other law that makes a king of England absolute anywhere, except in conquered countries; and
an attempt to assume such a power, by the fundamental laws, forfeits the prince’s right even to
the limited crown.
34
The actual settling of land in North America and the relationship between
settlers and Native Americans is outside the scope of this essay. What is important is that Adams
applies the settling of foreign lands without state support as outside the realm of imperial rule.
Settlers that migrated outside the imperial or common law boundaries of a sovereign were no
longer bound by that sovereign.
Thomas Jefferson also addressed the relationship between the American colonies and
Great Britain in his essay A Summary View of the Rights of British America. Jefferson drafted the
essay as a set of instructions for the Virginia delegation to the First Continental Congress.
34
Liberty, “Novanglus”.
31
Jefferson was to attend the Virginia convention to select delegates for the Continental Congress
but became ill on the trip. He sent the essay ahead to Williamsburg where the delegates debated it
but rejected it as too radical. However, convention members published the essay. In the essay,
Jefferson claimed that the settlers of North America chose to associate with Great Britain. Just as
James Wilson and John Adams argued in defense of the colonists’ rights to self-government,
Jefferson also stated the case that the colonists founded the American colonies free of British
governmental intrusion or support.
35
Jefferson first suggested that the congress send a remonstrance to the king to protest the
“many unwarrantable encroachments and usurpations, attempted to be made by the legislature of
one part of the empire, upon those rights which God and the laws have given equally and
independently to all.” Jefferson stated that the colonists possessed natural rights that no sovereign
could revoke. He then built upon this idea by describing the role of the monarch. The king,
according to Jefferson, was “no more than the chief officer of the people, appointed by the laws,
and circumscribed with definite powers, to assist in working the great machine of government,
erected for their use, and consequently subject to their superintendence.” Jefferson’s next logical
step was to highlight the difference between British subjects and American colonists. The
colonists’ ancestors left Britain and the king’s sovereignty by “going in quest of new habitations,
and of there establishing new societies, under such laws and regulations as to them shall seem
most likely to promote public happiness.” Jefferson made a clear distinction between a
sovereign’s rule within the limits of the monarch’s dominium and any lands settled outside of the
accepted borders of the monarchy.
36
35
Thomas P. Abernathy (ed), A Summary View of the Rights of British Americans, (New York:
Scholars’ Facsimile & Reprints, 1943), vi.
36
Merrill D. Peterson (ed), Jefferson: Writings (New York: The Library of America, 1984), 105.
32
Jefferson did not address the complicated debate of sovereignty in colonization but
reduced it to a more simplified version. He stated, “Their own blood was spilt in acquiring lands
for their settlement, their own fortunes expended in making that settlement effectual; for
themselves they fought, for themselves they conquered, and for themselves alone they have right
to hold.”
37
For Jefferson, the settlers conquered the native peoples and established colonies
without the support of the English government. The settlers held sovereign rule over the
conquered people and the land.
The early colonists, once their sovereignty was established, chose to associate with
England. Jefferson stated, “That settlements having been thus effected in the wilds of America,
the emigrants thought proper to adopt that system of laws under which they had hitherto lived in
the mother country, and to continue their union with her by submitting themselves to the same
common sovereign, who was thereby made the central link connecting the several parts of the
empire thus newly multiplied.”
38
The underlying point of this statement is that since the colonists
chose to place themselves under the English sovereign, they could choose at any time to leave
that same sovereign. The settlers never surrendered their right of association. As long as the
settlers were favorably disposed to the British sovereign, they would choose to maintain the
union.
However, the British monarch did not recognize the sovereignty of the colonists. The
king imposed laws and restrictions on the colonists. Jefferson stated that the colonists did not
“hold undisturbed the rights they acquired, at the hazard of their lives, and loss of their fortunes,”
as Parliament and the king enforced acts contrary to the freedom of the settlers. The king usurped
the rights of the settlers by arbitrarily creating new colonies owned and controlled by court
37
Peterson, 106.
38
Peterson, 107.
33
favorites. Jefferson applied John Locke’s theories of self-government to protest the actions of the
British monarch:
Accordingly that country…was by these princes, at several times, parted out and
distributed among the favourites [sic] and followers of their fortunes, and, by an
assumed right of the crown alone, were erected into distinct and independent
governments; a measure which it is believed his majesty's prudence and
understanding would prevent him from imitating at this day, as no exercise of
such a power, of dividing and dismembering a country, has ever occurred in his
majesty's realm of England.
39
Arbitrary government was one of the primary arguments Jefferson and others made against the
rule of Parliament and the king. Jefferson concluded, “The British Parliament has no right to
exercise authority over us”.
40
However, Jefferson hinted that the actions of the king were not
entirely arbitrary when he wrote that the king could “No longer persevere in sacrificing the rights
of one part of the empire to the inordinate desires of another; but deal out to all equal and
impartial right. Let no act be passed by any one legislature which may infringe on the rights and
liberties of another.”
41
What was arbitrary rule to the American colonists could have been
concerted imperial rule that promoted the empire at the expense of a specific colony or region. To
British leaders, placing the good of the empire had to take precedence over local needs or rights.
Jefferson based his work on republican theory, simplified concepts of sovereignty, and a
colonial interpretation of imperial actions. He infused his essay with the theories of John Locke in
his defense of self-government. As historian Reginald Horsman wrote, “A Summary View of the
Rights of British America was a fervent defense of American rights, but it was also an ardent
defense of the rights of new settlers to their own forms of government.”
42
Jefferson’s Summary
39
Peterson, 107.
40
Peterson, 110.
41
Peterson, 121.
42
Reginald Horsman, “Thomas Jefferson and the Ordinance of 1784,” Illinois Historical Journal,
Vol. 79, No. 2 (Summer, 1986), 105. Accessed August 13, 2013. http://www.jstor.org/stable/40191942.
34
View employed the writings of John Locke, Jean-Jacques Rousseau, and other political theorists
that supported self-determination for a citizenry.
The year 1774 was a remarkable year for describing republicanism, and self-
determination for populations. James Wilson, John Adams, and Thomas Jefferson protested the
actions of the British Parliament and king in a series of essays that became founding documents
in American political theory. The three essayists professed that the people of a newly settled
society are free to choose their form of government and define the rights assigned to that
government. These writers, and others, created a philosophy that became the legal justification for
independence and propelled the colonies into rebellion and a war for independence. Their
writings still stir oppressed peoples to protest and revolution.
III
Jefferson maintained his idealistic position on republican theory and self-government
when in 1776 he drafted a constitution for the state of Virginia. In his third draft, he addressed the
western lands issue and anticipated the creation of new colonies. Jefferson envisioned settlers
holding absolute sovereignty over their territory. As a free and independent people, they could
choose whether to join the United States or create a new republic. Jefferson predicted that “one or
more territories shall be laid off Westward of the Alleghaney [sic] mountains for new colonies,
which colonies shall be established on the same fundamental laws contained in this instrument,
and shall be free and independent of this colony and of all the world.”
43
Jefferson maintained his
theoretical idealism in self-governance during the revolutionary years of the 1770s.
In the same year Jefferson drafted his version of the Virginia constitution, he also drafted
the Declaration of Independence. The authority of the people in sanctioning a government was
established in the passage, “That whenever any Form of Government becomes destructive of
43
Peterson, 344.
35
these ends, it is the Right of the People to alter or to abolish it, and to institute new Government,
laying its foundation on such principles and organizing its powers in such form, as to them shall
seem most likely to effect their Safety and happiness.”
44
The creation or rejection of a
government was the sole responsibility of the citizens of the society affected. No superior body or
sovereign could impose a government on a people.
The Articles of Confederation, sent to the states for ratification in 1777, defined a
sovereign role for Congress in the confederacy. This was the first official acknowledgement by
American leaders that a centralized government, which the people did not directly sanction,
should exist and act in the interests of the union. Article IX granted specific rights to Congress.
The United States in Congress assembled, shall have the sole and exclusive right
and power of determining on peace and war, except in the cases mentioned in the
sixth article -- of sending and receiving ambassadors -- entering into treaties and
alliances, provided that no treaty of commerce shall be made whereby the
legislative power of the respective States shall be restrained from imposing such
imposts and duties on foreigners, as their own people are subjected to, or from
prohibiting the exportation or importation of any species of goods or
commodities whatsoever.
45
Congress also had the authority to adjudicate boundary disputes between states, coin money, and
regulate trade with Native Americans, along with other rights. It is important to note that the
states remained sensitive to their own sovereignty. The Articles did not grant Congress all the
rights associated with a modern, European state. Congress could declare war and coin money, but
the states controlled the collection of revenue and the military. In the passage above, Congress
held the right to enter into treaties and alliances but could not enter any treaty that would restrict
the states in controlling their own trade. Congress attempted to raise revenue through impost
44
National Archives. “Declaration of Independence”, Charters of Freedom. Accessed October 29,
2013. http://www.archives.gov/exhibits/charters/declaration_transcript.html
45
Yale Law School. “Articles of Confederation.” Avalon Project. Accessed August 4, 2013.
http://avalon.law.yale.edu/18th_century/artconf.asp.
36
taxes in 1781 and 1783 but failed each time. This failure highlighted the sensitivity with which
states protected their rights to trade.
46
Congress struggled to assert its authority under the Articles.
IV
In 1777, Congress took advantage of an opportunity to establish for itself a unique role in
the confederacy that could potentially be free of influence from the thirteen states. In October of
that year, Congress debated control of the lands west of the Ohio River and the disputed
boundaries between the thirteen states. Congress first debated a resolution requesting surveys of
state boundaries. Congressional nationalists – those who wanted a stronger central government –
proposed expanding the authority of Congress to include sanctioning the boundaries of the states:
That, in order to render the present union and confederacy firm and perpetual, it
is essential that the limits of each respective territorial jurisdiction should be
ascertained by the articles of confederation; and, therefore, it is recommended to
the legislatures of every State to lay before Congress a description of the
territorial lands of each of their respective states, and a summary of the grants,
treaties, and proofs upon which they are claimed or established.
47
However, Congress could only recommend that the states comply. The states voted down this
seemingly simple request.
Congressional nationalists tried again to give Congress authority over the western
boundaries of the thirteen states. Congress sought to not only establish state borders, but also
claim the western lands defined outside the state borders for its own use. The second resolution
read, “That the United States in Congress assembled, shall have the sole and exclusive right and
power to ascertain and fix the western boundary of such states as claim to the South Sea, and to
dispose of all land beyond the boundary so ascertained, for the benefit of the United States.”
48
46
Merrill Jensen, The New Nation, (New York: Vintage Books, 1950), 63-67.
47
W.C. Ford, et al, (eds.) Journals of the Continental Congress, 1774-1789 (Hereafter referred to
as JCC), 34 vols. Washington, D.C.: U.S. Government Printing Office, 1904-1937, p 806-7. Accessed
August 14, 2013. http://memory.loc.gov/cgi-bin/query/r?ammem/hlaw:@field(DOCID+@lit(jc00913)).
48
Ford, JCC.
37
Since the previous resolution to simply report on the boundaries and any treaties attached to the
states failed, it should be as no surprise that this resolution also failed. The states were not
prepared to consider surrendering their lands to a national government.
Finally, in a third resolution, congressional nationalists attempted to expand the authority
of Congress to include not only establishing current state boundaries, and claiming the western
lands for its own use, but also to creating new states out of the territorial lands. The final
resolution read, “That the United States, in Congress assembled, shall have the sole and exclusive
right and power to ascertain and fix the western boundary of such states as claim to the
Mississippi or South Sea, and lay out the land beyond the boundary, so ascertained, into separate
and independent states, from time to time, as the numbers and circumstances of the people thereof
may require.”
49
This resolution failed just as the previous two resolutions failed. The authority
and reputation of Congress were not sufficient to sway the states to surrender any land to its
control. The states saw Congress as a necessity strictly designed to fight the war with Great
Britain. It would be two more years before the states allowed Congress to pass a resolution
concerning the expansion of the union.
The reason Congress felt compelled to adjudicate land claims between the states was that
with British imperial control removed after independence, states did not have a superior power to
authorize their land claims, no matter how dubious the claims. Historian Peter Onuf described the
situation of the mid–1770s as, “The failure of the empire and, in turn, of the United States to
secure colony–state claims led to a proliferation of new claims, one leading to another.” Several
states had to defend unsettled areas from encroachment by other states. If the states could not
settle their boundaries, then the land claims could threatened the union at its most vulnerable
time.
50
49
Ford, JCC.
50
Peter Onuf, The Origins of the Federal Republic, (Philadelphia: University of Pennsylvania
Press, 1983), 51.
38
As an example, in 1774, the Connecticut assembly extended its jurisdiction to cover the
Wyoming Valley in Northeastern Pennsylvania. Connecticut’s old charter included the area, but
Connecticut’s leaders surrendered claims to the valley as part of the chartering of Pennsylvania in
1682. Connecticut planned to use the Wyoming Valley as a destination for landless citizens who
wanted farmland. An “Article IX” court, which, under the Articles of Confederation, gave
authority to Congress to adjudicate disagreements between states, upheld Pennsylvania’s claim to
the Wyoming Valley. However, the dispute lingered until the states ratified the Constitution in
1788.
51
In the 1770s, Congressional nationalists believed that only a stronger centralized
government could control the rapaciousness of the states for land. By settling boundaries and
claiming territorial lands, Congress could establish itself as a sovereign and place the union on a
solid footing for expansion.
Between 1778 and 1780, the authority of Congress grew. The states were more receptive
to settling land disputes through Congress. As a result, Congress passed the Resolution of 1780
concerning the lands to the west and north of the Ohio River. The wording of the resolution
reflected the growing maturity of Congress and its understanding of its role in the union. The
resolution did not dictate that Congress would establish the boundaries of the current states.
Congress would simply accept lands ceded to the union. However, any state ceding land would
have its remaining territory guaranteed by Congress. States had incentive to surrender contested
or unprotected lands to Congress to settle their borders and end contentious land disputes between
states. Congress would use the lands for the “common benefit of all the United States”. What is
most revealing about the resolution is how Congress saw its role in the process of establishing
new states. Each new state will be republican, of a certain size, and be a full, sovereign member
of the federal union. Congress would not allow settlers to determine their own state governments.
The resolution read in part:
51
Onuf, “Origins”, 50, 58, 71.
39
Resolved, That the unappropriated lands that may be ceded or relinquished to the
United States, by any particular states…shall be granted and disposed of for the
common benefit of all the United States that shall be members of the federal
union, and be settled and formed into distinct republican states, which shall
become members of the federal union, and have the same rights of sovereignty,
freedom and independence, as the other states: that each state which shall be so
formed shall contain a suitable extent of territory, not less than one hundred nor
more than one hundred and fifty miles square, or as near thereto as circumstances
will admit: and that upon such cession being made by any State and approved
and accepted by Congress, the United States shall guaranty the remaining
territory of the said States respectively.
52
The writings of Wilson, Adams, and Jefferson describing republican theory were set aside in
favor expanding the union. Congressional leaders sacrificed Locke’s theory of self-government
for the good of the union. What might appear like arbitrary, imperial rule to local settlers made
perfect sense from the vantage point of Congress. The good of the union must come first.
Congress established other principles in the resolution that reflected its expanded sense of
power. Congress would control the rate of expansion for the union to ensure a smooth integration
process and orderly assimilation of new states. The resolution stipulated, “The said lands shall be
granted and settled at such times and under such regulations as shall hereafter be agreed on by the
United States in Congress assembled, or any nine or more of them.”
53
In addition, Congress
considered any purchases of Indian land invalid if the buyers did not have the approval of the
state that held the right of preemption.
Marking the evolution of American political philosophy, Congress’s 1780 resolution is a
point-by-point copy of Britain’s 1763 royal proclamation. In 1763, American colonists had
protested the actions espoused in Britain’s Royal Proclamation of 1763, which closed off western
lands to settlers, voided land titles, and dictated governmental structures for the colonies. In the
52
JCC, p 915-6, (http://memory.loc.gov/cgi-
bin/query/r?ammem/hlaw:@field(DOCID+@lit(jc01830)).
53
JCC, p 915-6, (http://memory.loc.gov/cgi-
bin/query/r?ammem/hlaw:@field(DOCID+@lit(jc01830)).
40
proclamation, Parliament acted as a confident, focused, imperial power that understood its role in
ruling over an empire. The good of the empire always came first. By 1780, the same actions
made perfect sense to Congress. The good of the union came first.
In the mid-1770s, Wilson, Adams, and Jefferson employed the natural rights arguments
and republican theories within American political theory to protest the imperial sovereignty of the
British government. They also protested the imposition of taxes, laws, and the reduction of
authority in the colonial assemblies. By 1780, Congress applied a similar imperial sovereignty
when it passed the Resolution of 1780 that laid out the path for statehood for all future territories.
Congress’s actions copied those of Parliament which led to the republican protest essays of 1774.
The Resolution of 1780 placed Congress on a path towards an imperial sovereignty of its own.
However, Congress developed a more sophisticated version of imperial rule than Parliament. The
congressional version began more heavy-handed and controlling than the British version, but
transferred sovereignty to the new states created out of the Northwestern Territories. As will be
seen in the land ordinances of the 1780s, Congress sought to protect and extend republican
government and the union by applying the lessons learned from British imperial rule in the 1760s.
Chapter 2
The Northwestern Territories and Congressional Sovereignty in 1784
Before Congress could enact a land ordinance concerning western lands, it had to
settle land disputes with the various states, primarily Virginia. In effect, Congress had to
gain title to the lands it wished to control. This complicated process dragged out over
many years. As early as 1776, Virginia leaders considered the creation of new states in
the west. The Virginia assembly passed a cession act in 1781, but Congress, led by the
smaller states, refused Virginia’s demands and its offer. According to the small, landless
states, led by Maryland, Virginia’s cession offer left it too large and powerful. An
oversized Virginia could threaten the small states’ very existence. It was not until 1784
that Virginia’s opponents finally gave in to most of Virginia’s requests and accepted the
cession of lands to the west of the Ohio River. The rationale of Virginia’s leaders
concerned territorial
integrity. Virginia faced challenges to its territories from settlers,
land speculators, other states, and potentially, European empires. Virginia’s leaders
sought to exchange territorial land for an acknowledgement of the state boundaries. It
was not until 1784 that the small states gave in to the conditions set down by Virginia’s
leaders and Congress gained control of the Ohio territory. Virginia’s cession was critical
to Congress because, as Peter Onuf wrote, “Virginia had the best-developed claim to the
trans-Ohio region that Congress coveted.” Congress needed a national domain, but
Virginia stood in the way of gaining ownership to it. Congress sought the lands across the
Ohio because state jurisdiction did not extend over the territories. Disputes between the
states over ill-defined territorial borders disappeared as each state surrendered lands
42
outside of its defined borders to Congress. The Northwestern territory became the domain
of Congress.
1
Once Congress settled Virginia’s cession claims, it could proceed with a land
policy for the Ohio region. Thus, in 1784, Congress drafted and debated an ordinance
concerning the organization of the Northwest Territories.
2
The 1784 land ordinance
created a process that would lead to statehood for the new territories. Congressional
leaders debated the ordinance under the Articles of Confederation, which stipulated that
the original thirteen states must vote to allow a new state to send delegates to Congress.
In addition, each state legislature must approve a change to the Articles to accept a new
state as a full and equal member of the confederation. The Articles placed explicit
restrictions on Congress concerning the expansion of the union. Article XI of the Articles
stated, “Canada acceding to this confederation, and adjoining in the measures of the
United States, shall be admitted into, and entitled to all the advantages of this Union; but
no other colony shall be admitted into the same, unless such admission be agreed to by
nine States.”
3
The states possessed the authority to admit new states. However, Congress
did not adhere to the constraints of the Articles in organizing the territories.
Congressional leaders designed and implemented a process for statehood in the western
territories without the approval of the states. In fact, the statehood process drafted by
1
Onuf, “Origins”, 75-7, 82-3, 87, 95.
2
There is some disagreement on whether the Ordinance of 1784 was an ordinance at all. Some
historians believe the ordinance was only a report and simply laid out principles for the expansion of the
union. For the purposes of this essay, the term ordinance is used for the 1784 document to maintain clarity
and cohesion with the ordinances passed by Congress in 1785 and 1787. For a full discussion of the legal
standing of the 1784 ordinance see Richard McCormick, “The ‘Ordinance’ of 1784,” The William and
Mary Quarterly, Third Series, Vol. 50, No. 1, Law and Society in Early America (Jan., 1993).
3
Yale, “Articles”.
43
Congress in 1784 was an unauthorized expression of imperial sovereignty unsupported
by the Articles of Confederation or by congressional experience.
I
The restriction on congressional actions concerning new states was indicative of
the strict limits the Articles placed on congressional authority. Congressional leaders
knew they were exercising rights concerning the territories that Congress did not possess.
In 1788, in Federalist Essay #38, James Madison described the powers exercised by
Congress concerning the western territories. Madison’s comments highlighted the
extralegal actions of Congress as well as the sensitivity of state leaders towards
Congressional power at the time. Madison wrote:
Congress have assumed the administration of [the territories]…They have
proceeded to form new States, to erect temporary governments, to appoint
officers for them, and to prescribe the conditions on which such States
shall be admitted into the Confederacy. All this has been done; and done
without the least color of constitutional authority.
4
By dictating terms for new states, Congress treated the territories similarly to conquered
colonies ruled from a metropolitan center.
5
Congressional leaders understood that they needed additional powers to perform
various tasks but could not agree on what those powers should be, or if those powers
should be permanent or temporary. Nationalist leaders wanted to make fundamental
4
Library of Congress, “Federalist #38”, The Federalist Papers, accessed October 13, 2013,
http://thomas.loc.gov/home/histdox/fed_38.html.
5
There are several informative texts on the Continental Congress and the formation of the
American Republic. See Jack N. Rakove, The Beginnings of National Politics, (New York: Alfred A.
Knopf, 1979) for a study specifically concerning Congress from 1776 - 1787. Also, Gordon Wood, The
Creation of the American Republic: 1776 – 1787, (Chapel Hill: University of North Carolina Press, 1969),
and Forrest McDonald, E Pluribus Unum, (Boston, Houghton Mifflin, 1965). These texts explore the
maturation of republican theory in America and the ideological underpinnings of the Constitution.
44
changes to the Articles through amendments, interpretation, or even force. Federalist
leaders sought to give Congress specific powers for a limited time without amendments
to the Articles.
6
In 1783, at the end of the war with Great Britain, nationalist leaders left
Congress as Federalists took power in state legislatures and sent their leaders to
Congress. The Federalists would expand congressional power in a deliberate and specific
manner. The ordinances of the 1780s reflect this methodical expansion of congressional
power.
7
Beginning with the Ordinance of 1784, Congress expanded its power by creating
specific rules for a territory to become a state. The 1784 ordinance was an ideological
departure from the loose confederation of states and weak congress defined in the
Articles. Congress began to assert itself as a sovereign in its own right as it dictated the
territories’ pathway to statehood and sovereignty. The Ordinance of 1784 was Congress’s
first attempt to exercise authority modeled on the modern, European definition of
centralized, nationalistic sovereignty.
8
Congress used the 1784 ordinance to attempt to answer the question of how much
authority to give to the settlers in the new territories. Congress was unsure of the answer
and changed its position during the debate over the ordinance. The main issue for
6
In 1783, the term “Federalist” applied to the supporters of limited and specific congressional
power. Later in 1787-8, during the ratification debate over the Constitution, those who favored a strong
national government claimed the title. “Federalists” in 1783 were “Anti-federalists” in 1787-88.
7
Merrill Jensen, The New Nation, (New York: Vintage Books, 1950, 399-400).
8
Yale Law School, “Report on Government for Western Territory; March 1, 1784,” Avalon
Project, accessed August 5, 2013, http://avalon.law.yale.edu/18th_century/jeffrep1.asp.; A modern
European state is based upon several conditions: Territoriality or the guarantee of borders, international
relations or being treaty-worthy, concentrated political power, control of the military, and the control of a
revenue source. For a more complete discussion see Harald Gustafsson, “The Conglomerate State: A
Perspective in State Formation in early Modern Europe”, Scandinavian Journal of History. Sep 98, Vol. 23
Issue 3, p 189-213.
45
congressional leaders was a lack of trust in the settlers. Congress had to decide how much
it should trust the frontiersmen to create a republican constitution and institutions that
supported the union and Congress.
9
Congress had no experience and no established
political theory to guide them in creating and assimilating new states. Congressional
representatives understood the importance of guiding the settlers towards statehood. In
the end, Congress decided to control the statehood process, which led to a pre-ordained
outcome.
The process to turn territories into states–including border surveys, land sales, and
the creation of governmental institutions–was critical to the expansion and existence of
the union. Congress might jeopardize the union if it did not handle the creation of new
states correctly. It was imperative for Congress to control the process to create not just
new states, but new republican states. This type of control required a nationalist
government. In reference to the Resolution of 1780, historian Robert S. Hill wrote, “In
calling on the states to cede territory to the United States, the Congress used strikingly
nationalistic language. Union was said to be ‘essential ... to our very existence as a free,
sovereign and independent people.’ Throughout the protracted and hard-fought struggle
that eventually produced the Northwest Territory can be seen the persistence and primacy
of the conviction that the federal union had to survive.”
10
The nationalism expressed by
Congress went against the language and spirit of the Articles of Confederation. The
9
Robert F. Berkhofer, “Jefferson, the Ordinance of 1784, and the Origins of the American
Territorial System,” The William and Mary Quarterly, Third Series, Vol. 29, No. 2, (April 1972), 253.
10
Robert S. Hill, “Federalism, Republicanism, and the Northwest Ordinance,” Publius, Vol. 18,
No. 4, Land and Liberty in American Society: The Land Ordinance of 1785 and the Northwest Ordinance
of 1787 (autumn, 1988), 42.
46
Federalist leaders in Congress applied their theory of granting specific powers to
Congress in the statehood process. Congress expanded its authority and took a more
nationalistic tone in the statehood process specifically to protect the union by expanding
it.
When Thomas Jefferson drafted the 1784 ordinance, he exhibited a more
moderate republicanism than in his writings of the mid-1770s. While his draft ordinance
proposed local control of government, Jefferson also understood the importance of
creating obligations for each new state. In fact, by 1784 Jefferson no longer professed
that new colonies should be “free and independent of…all the world”, as he stated in his
draft constitution for Virginia in 1776. The 1784 ordinance reflected the wishes of
Congress that all new states would support the expansion of the union in the west.
11
Jefferson supported the position that a central authority should control the dispersal of
lands and their formation into political entities.
II
The language in the ordinance was clear and specific about Congress’s role in
forming new states. Its authority over the creation of new states was absolute. In many
ways, when compared to actions by Great Britain before the revolution, Congress acted
in a similar manner. It acted as an imperial sovereign. The contrast between Congress’s
nationalistic, sovereign authority over the new territories and its weak, limited authority
over the thirteen states revealed the changing nature and center of American sovereignty.
11
Reginald Horsman, “Thomas Jefferson and the Ordinance of 1784”, Illinois Historical Journal,
Vol. 79, No. 2 (Summer, 1986), 105, 109.
47
Congress asserted its authority in the opening lines of the ordinance. The settlers
in each new state did not have the right to determine the boundaries of the societies they
formed or to negotiate common boundaries with other states. The first sentence declared
that new states “shall be divided into distinct states, in the following manner…” The
ordinance then used longitude and latitude to determine the number, location, and size of
each state. In his Summary View essay, Jefferson criticized English monarchs for granting
proprietary colonies to favorite supporters. He mentioned Maryland as an example. In
1632, Charles I granted Maryland to Lord Baltimore. The language used by Charles I to
determine the boundaries of Maryland was very similar to that used by Congress for the
new states. The Charter of Maryland used longitude and meridians, as well as rivers, the
seashore, and Delaware Bay to define the boundaries of the new colony of Maryland. The
sovereign, in this case King Charles I, arbitrarily defined a specific plot of land and
established a political society. In the proprietary colony of Pennsylvania granted to
William Penn in 1681, King Charles II used the same language to determine the new
colony. Charles II gave Penn all the land from the Delaware River to the forty-third
longitude and the fortieth latitude. This included the land in a “circle drawn at twelve
miles distance from New Castle Northward and Westward unto the beginning of the
fortieth degree of Northern Latitude, and then by a straight Line Westward to the Limit of
Longitude.”
12
Over one hundred and fifty years later Congress acted in the same manner
by arbitrarily defining the borders of the new states in the Northwest Territories. It
12
Yale Law School, “Charter for the Province of Pennsylvania - 1681,” Avalon Project, Accessed
October 13, 2013, http://avalon.law.yale.edu/17th_century/pa01.asp.
48
assumed the authority of an imperial sovereign for the determination of political
societies.
13
The arbitrary creation of political societies conflicted with the political theories of
English philosopher John Locke. In his Second Treatise on Government, Locke addressed
the transition from a state of nature to that of a political society. Locke wrote, “For when
any number of men have, by the consent of every individual, made a community, they
have thereby made that community one body, with a power to act as one body, which is
only by the will and determination of the majority.”
14
Locke criticized the arbitrary nature
of absolute monarchy concerning the governing of citizens. However, in 1784, Congress
acted as an arbitrary sovereign in the creation of new states by removing the settlers’
right to create their own society – including defining its borders. Congressional authority
over the territories under the Articles was ambiguous. Leaders exploited this ambiguity to
exercise imperial, arbitrary control over the territories.
Congress used its unauthorized sovereign powers not only to create new states,
but also to control each one’s political development. Settlers in the new territories did not
begin the statehood process of their own accord. Their political evolution required the
consent of Congress. The ordinance stated, “That the settlers on any territory so
purchased, and offered for sale” the second paragraph of the 1784 ordinance began,
“shall, either on their own petition or on the order of Congress, receive authority from
them, with appointments of time and place, for their free males of full age within the
13
Yale Law School, “The Charter of Maryland: 1632,” Avalon Project, Accessed August 6, 2013,
http://avalon.law.yale.edu/17th_century/ma01.asp.
14
John Locke, Political Writings of John Locke, ed David Wootton, (New York: The Penguin
Group, 1993), 310.
49
limits of their State to meet together, for the purpose of establishing a temporary
government.”
15
Jefferson previously criticized the same action by the British monarch
and the re-introduction of the royal veto. In A Summary View, Jefferson wrote, “For the
most trifling of reasons, and sometimes for no conceivable reason at all, his majesty has
rejected laws of the most salutary tendency.” He concluded his point with, “That this so
shameful an abuse of a power trusted with his majesty for other purposes, as if not
reformed, would call for some legal restrictions.”
16
Jefferson proclaimed in 1774 that the
king should “no longer persevere in sacrificing the rights of one part of the empire to the
inordinate desires of another; but deal out to all equal and impartial right. Let no act be
passed by any one legislature which may infringe on the rights and liberties of another.”
A decade later, he accepted that there was a need for centralized control of new territories
and that the “order of congress” was entirely appropriate for guiding settlers towards
statehood. Congress was concerned about maintaining the union and expanding
westward. Local considerations and theoretical rights of settlers had to give way to the
needs of the union. Congressional approval of the territories’ actions was critical to
ensure the smooth, controlled, and republican growth of the union.
A second legal restraint placed on the territories was the drafting of state
constitutions. Congress did not trust the settlers to create republican constitutions that
would sufficiently support the union. Therefore, leaders forced the territories to select a
constitution from one of the original thirteen states. The 1784 ordinance stated that the
new states must “adopt the constitution and laws of any one of the original States; so that
15
Yale, “1784 Report”.
16
Peterson, 115-6.
50
such laws nevertheless shall be subject to alteration by their ordinary legislature;”
17
The
second phrase about laws being “subject to alteration by their ordinary legislature”
revealed Congress’ ambivalent attitude about local rule. By requiring each new state to
adopt a constitution from one of the thirteen original states, Congress would establish the
parameters for debate over any future constitutional changes by state leaders. New states
would begin with republican institutions to constrain future modifications to their
constitutions. In addition, congressional leaders did not want to establish a precedent for
interfering in the actions of a sovereign state. As Reginald Horsman wrote, “Jefferson
obviously intended that from the time of the first establishment of the government a new
territory would govern its own affairs.”
18
Congress exerted sovereign rule to protect and
expand the union. It did not intend for a new state to lose authority over its internal
governance, but only to ensure that local control meant republican control.
Congressional control of the territories was similar to that which King George III
had exercised over the colonies before the revolution, but the control Congressional
leaders envisioned was not permanent. Congressional sovereignty over the territories was
temporary. As territories became states, they would gain “an equal footing with the said
original states”
19
This was an early step in Congress’ attempts to redefine sovereignty to
include a role for the states. As the territories became states, they earned their sovereignty
in their relations with the other states and with Congress. When the territories proved
17
Yale, “1784 Report”.
18
Horsman, 107.
19
Yale, “1784 Report”.
51
themselves good republican entities and members of the union, Congress allowed them to
participate as polities equal to the original thirteen states.
Congress established seven principles to guide the territories on the path to
statehood. The first revealed Congress’s concern about the westward expansion of the
union and the pressures or “centrifugal forces” that expansion placed upon the union.
Members of Congress feared an independent country forming in the west or perhaps a
region influenced or directly controlled by a European power. There was also a fear that
the current thirteen states would split up due to expansion pressures. The condition stated,
“That they shall for ever [sic] remain a part of this confederacy of the United States of
America.”
20
Listing this principle first reveals Congress’s greatest fear and its primary
motivation for the ordinance.
21
A writer in a South Carolina newspaper warned about the
dire consequences of a weak union when he wrote, “For the states to trifle any longer [in
strengthening the union] is to sport with their existence, and to offer themselves a prey to
any invader, or to a tyrant, or to anarchy.”
22
Historian Robert Berkhofer stated that the
first condition in the ordinance “appears the very reason for the existence of the
ordinance.”
23
To protect the union, Congress knew the union must expand. As Peter
Onuf wrote, “Most commentators agreed that the alternative to expansion was
disintegration; even the most superficial knowledge of western conditions confirmed that
20
Yale, “1784 Report”.
21
Peter S. Onuf, “Liberty, Development, and Union: Visions of the West in the 1780s,” The
William and Mary Quarterly, Third Series, Vol. 43, No. 2 (Apr, 1986), 180.
22
Boston, July 19, 1786, State Gazette of South Carolina, August 24, 1786.
23
Berkhofer, 247
52
such fears were well grounded.”
24
It was the fear of disunion that drove Congress to
establish principles to guide the territories–principles that Congress did not have the
authority to create. The situation was such that Congress felt obliged to act in the interests
of the union and to act as an imperial sovereign over newly acquired territories. Within
the context of the relationship between the northwestern territories and Congress,
Congress was a sovereign in the mold of Parliament and George III.
The second condition established by Congress for statehood was similar to the
first condition. However, the wording of the condition revealed Congress’s mistrust of
the settlers of the territories. Congress believed that the settlers of the territories lacked
the capacity for republican government and therefore, were not to be trusted to establish
proper legal and governmental constraints on their actions. The condition stated, “That in
their persons, property & territory, they shall be subject to the Government of the United
States in Congress assembled and to the articles of confederation in all those cases in
which the original states shall be so subject.”
25
This was not merely a stated desire or
general guideline for the territories. In a later action, Congress created the position of
Commissioner as one of the positions to oversee the territories’ move to statehood. The
commissioner appointed a magistrate, who acted as a judge, for each district in the
territory. The commissioner was also to “appoint executive officers in the respective
districts and carry [the magistrates’] decrees into execution. That [the officers] explain to
the inhabitants of the said district, such resolutions and proceedings of the United States
in Congress, as respect to the same, and endeavor to form their habits for the reception of
24
Onuf, “Liberty, Development, and Union”, 184.
25
Yale, “1784 Report”.
53
a republican government.”
26
The condescending tone of these instructions highlights the
gulf between the established Eastern leadership and the frontiersmen in the western
territories. According to Congress, territorial settlers were not to be trusted to form
republican habits and needed guidance to develop into good citizens. The appointed
officers would “explain” the proceedings of Congress to “form” the proper habits in the
inhabitants of the territories. John Jay wrote to Thomas Jefferson in 1786 and expressed
the fears that Eastern leaders held concerning settlers in the west. Jay wrote:
Would it not be wiser gradually to extend our Settlements, as want
of Room should make it necessary, than to pitch our Tents through the
Wilderness in a great Variety of Places, far distant from each other, and
from those Advantages of Education, Civilization, Law, and Government
which compact Settlements and Neighbourhood [sic] afford? Shall we not
fill the Wilderness with white Savages and will they not become more
formidable to us than the tawny ones who now inhabit it?
27
Congress believed that the western territories were simply too important to the union to
trust to the people actually living there. Later Congress removed the phrase “person,
property, and territory” and added a phrase about making laws in accordance with
Congressional law. The meaning and intent of the condition did not change. Congress
would ensure that the people in the new states would be republican citizens according to
congressional standards.
26
W. C. Ford et al., eds., Journals of the Continental Congress, 1774-1789. 34 vols. (Washington,
D.C.: U.S. Government Printing Office, 1904-193), 11:155-11:156. (Hereafter referred to as JCC).
http://memory.loc.gov/cgi-bin/query/D?hlaw:5:./temp/~ammem_y7ou::
27
John Jay to Thomas Jefferson, December 14, 1786, “Founders Online”, National Archive.
Accessed October 12, 2013.
http://founders.archives.gov/?q=john%20jay%20means%20of%20civilization&s=1111311111&sa=&r=7&
sr=.
54
The first two conditions set down by Congress established congressional
sovereignty in the creation of political institutions in the new states. Congressional
leaders learned from Parliament’s mistakes and intended to keep a tight rein on the new
territories and their transition to states. There would be no “salutary neglect” on the part
of Congress. Clearly established principles controlled by Congress that favored the union
would ensure that the new states received congressional approval and joined the union as
republican equals to the thirteen original states.
Another condition set by Congress concerned the sale of public lands in the
territories. This was not a part of the original document submitted by Jefferson’s
committee. Congressional leaders added the principle during the debate over the
document. This condition extended congressional control of the territories beyond the
creation of states into the distribution of lands in the states. The principle read, “That they
in no case shall interfere with the primary disposal of the soil by the United states [sic] in
Congress assembled, nor with the ordinances and regulations which Congress may find
necessary, for securing the title in such soil to the bona fide purchasers.”
28
Numerous
parties contested property claims in the Northwestern Territories. Squatters established
farms and small communities without legal title to the lands they claimed. Land
speculators pressed for title to vast tracts of land to resell at a profit. Native Americans
possessed large areas in the territories.
29
To control this chaotic situation, Congress
copied the authority exercised by the Privy Council in Britain during the first half of the
eighteenth century. The King’s Privy Council oversaw Britain’s colonies and their
28
Yale, “1784 Report”.
29
Onuf, “Liberty, Development, and Union”, 185-189.
55
development. The council reviewed and could nullify colonial laws. It also appointed
commissioners of review to settle colonial boundary disputes. As the eighteenth century
progressed, the British Secretary of State assumed the role of the Privy Council and
personally ruled in colonial affairs.
30
Congress copied this authoritarian model of
governance in the disposition of territorial lands.
Disputes over land ownership were not new to Americans in the 1780s.
Arguments over land claims between the states and land speculators went back decades.
As Robert Berkhofer wrote, “Rather it was in many ways a continuation of the earlier
fights among the colonies and their land speculators over rival land claims and political
jurisdiction in the trans-Appalachian West.” Congress became the arbitrator over
disputed claims in the same way Parliament held the role before the Revolution.
31
In
addition, there were separatist movements in several states that threatened established
states and their sovereignty over lands within their own borders. Residents of the Maine
district, western North Carolina, the Kentucky District, and the Wyoming Valley in
eastern Pennsylvania all sought statehood or were contested by multiple states at various
times.
32
The questions facing Congress and the existing states was if the original states
held the sovereignty to create new states or territories out of their own lands, and whether
settlers in an established state could secede to create a new state. Were the states
sovereigns or not?
30
W. C. Holdsworth, A History of English Laws, 16 vols, (London: Methuen and Co., 1922-66),
11:70 – 11:71. Accessed August 16, 2013.
http://archive.org/stream/historyofenglish11holduoft#page/70/mode/2up.
31
Berkhofer, 233.
32
Peter S. Onuf, The Origins of the Federal Republic, (Philadelphia: University of Pennsylvania
Press, 1983), 31-2.
56
The statehood principle listed in the Resolution of 1784 that new states recognize
that Congress controlled the “primary disposal of the soil” forced the territories to
acknowledge that their future sovereignty was subservient to Congress. New states would
not dispose of their lands as they saw fit, nor could citizens carve out a new state from
within the borders of an established state. This was an acknowledgement of the cession
agreements made between Congress and the various states during the early 1780s
discussed above.
The next condition addressed the debt contracted by Congress during and after the
war. However, there was a larger issue than simply paying the debt. It involved the
relationship between the states and Congress. The lack of respect and attention paid to
Congress by the states made the collection of monies for debt payment difficult, if not
impossible. Robert Berkhofer stated that “The plight of the Confederation treasury and
the pressures that generated compromise over cession seem adequate to explain the
stipulation that new states pay their share of federal debts.”
33
The clause read, “That they
shall be subject to pay a part of the federal debts contracted or to be contracted, to be
apportioned on them by Congress, according to the same common rule and measure by
which apportionments thereof shall be made on the other states.”
34
Debt payment by
Congress became a sovereignty battle with the thirteen states. Ronald Gephardt wrote,
“As local interests flourished, national-minded leaders feared congressional impotence
would make the United States an object of international ridicule.”
35
An essayist writing
33
Berkhofer, 247.
34
Yale, “1784 Report”.
35
Ronald M. Gephardt, “Who Wrote the ‘North American’ Essays?” The William and Mary
Quarterly, Third Series, Vol. 54, No. 2 (Apr., 1997), 399.
57
under the pseudonym of “The North American” in The Freeman’s Journal on September
17, 1783 addressed the problem in an article that shaped the debate over the sovereignty
of the states and the authority of Congress.
36
“North American” wrote, “Unhappily then
for America, the separate sovereignties of our respective states [maintain] an undeviating
adherence to state interests, state prejudices, [and] state aggrandizement.” “North
American” proceeded to criticize the debt payment plan in effect in Congress and to
despair of ever paying down the country’s foreign debt. “Let any rational man with this
view ask, what reasonable hopes can we have of voluntarily discharging our foreign debt;
it is a debt which can never be divided among the different states.” According to “North
American”, the loan agreements prohibited apportioning the debt among the states and
the formula for apportionment created by Congress was untried and unworkable.
37
“North
American” called on the integrity and honor of the states and the union to pay the debts
owed to European countries, particularly France due to its support in the war. Under the
Articles of Confederation, Congress was powerless to collect money from the states. The
assignment of war debt to new states merely spread the debt among all states, new and
original, as well as avoided any future problems with new states absolving themselves
from any debt created prior to their incorporation.
36
The author of the “North American” essays is unknown as of this writing. Several candidates
are possible. Various historians support James Madison, Pennsylvanian Richard Peters, or a collective
effort lead by South Carolinian Jacob Read as the author or authors.
37
“The North American I.” The Freeman’s Journal. September 17, 1783. Accessed August 18,
2013. http://infoweb.newsbank.com/iw-
search/we/HistArchive/?p_product=EANX&p_theme=ahnp&p_nbid=H69G5FEWMTM3Njg0NTk5NC43
MTk2NzM6MToxMzoxMzQuMTI2LjEwLjM1&p_docref=v2:13B4F281CD7D9866@EANX-
13EFE442006958C0@2372547-13EF9CFCE2E7B6F8-13F9312DD8D4785A
.
58
Congress exempted itself from state taxes as another condition of statehood and
added this condition during the debate over the ordinance. This condition reflected the
growing desire of Congress to assert itself over the authority of the states. The delegates
wanted clear, unequivocal language that asserted Congress’s distinct sovereignty, apart
from specific rights delegated to it under the Articles. The condition read, “That no tax
shall be imposed on lands, the property of the United States.”
38
Twenty years before this
time, William Blackstone described the legal theory to support this stipulation in his
Commentaries on the Laws of England. Blackstone wrote that the British sovereign held
“incidental prerogatives’ and that among these were “that no costs shall be recovered
against the king; that the king can never be a joint-tenant; and that his debt shall be
preferred before a debt to any of his subjects.”
39
A sovereign was financially superior and
unassailable by any subject. Congress applied this concept to the territories. It set itself
apart and above any financial constraints imposed by newly created governments.
Congress continued to expand its concept of an imperial sovereign at the expense of the
future states.
Another principle required a republican government in each newly added state
and a ban on hereditary titles. This ban was especially important to Jefferson. He believed
hereditary titles would damage or ruin the republican virtues of the citizens of the new
states. The original version written by Jefferson stated, “That their respective
governments shall be in republican forms, and shall admit no person to be a citizen who
38
Yale, “1784 Report”.
39
Yale Law School, “William Blackstone’s Commentaries on the Laws of England”, Avalon
Project, Accessed August 19, 2013, http://avalon.law.yale.edu/18th_century/blackstone_bk1ch7.asp.
59
holds any hereditary title.”
40
In a letter written in April of 1784 to George Washington,
Jefferson was concerned about Washington’s membership in the Society of the
Cincinnati. Officers of the Continental Army and the French Army that served in the
Revolutionary War formed the society to foster fellowship among its members.
Membership in the society was hereditary. In the letter, Jefferson displayed his antipathy
towards aristocracy. He wrote:
[Those who oppose the society] urge that it is against the confederation --
against the letter of some of our constitutions; -- against the spirit of all of
them -- that the foundation on which all these are built is the natural
equality of man, the denial of every preeminence but that annexed to legal
office, & particularly the denial of a preeminence by birth.
41
Jefferson saw the society–and by extension the rights of heredity–as antithetical to
republican principles. An American aristocracy would bring the worst of British political
and cultural society to the union and threaten republican equality. Jefferson’s ban on
hereditary titles in the 1784 ordinance was consistent with his beliefs. Congress, by a
large majority, deleted the section about denying citizenship to those who held hereditary
titles. Many members of Congress did not approve of hereditary titles but felt the
ordinance was not the place to address the issue.
42
The principle that banned slavery in the new states – another cause dear to
Jefferson – revealed the developing sectionalism in the union. It read, “That after the year
1800 of the Christian era, there shall be neither slavery nor involuntary servitude in any
40
Yale, “1784 Report”.
41
Thomas Jefferson to George Washington, April 16, 1784, Electronic Text Center, University of
Virginia. Accessed August 20, 2013. http://etext.virginia.edu/etcbin/toccer-
new2?id=JefLett.sgm&images=images/modeng&data=/texts/english/modeng/parsed&tag=public&part=25
&division=div1.
42
Berkhofer, 249.
60
of the said states, otherwise than in punishment of crimes, whereof the party shall have
been convicted to have been personally guilty.” Congress deleted the passage during the
debate over the ordinance. All the delegates above the Mason-Dixon Line voted to
maintain the ban on slavery, but most below the line voted to remove it. New Jersey was
not sufficiently represented to vote, so the antislavery forces lost and the principle was
deleted.
43
When Congress finished editing Jefferson’s principle concerning republican
government, hereditary titles, and slavery, all that remained was, “That their respective
governments shall be republican.” In 1784, Congress was not prepared to debate the
expansion of slavery at so crucial a time for the union. Congress pushed its authority far
beyond what the Articles granted it. Unanimity and single-mindedness of purpose
required Congress to delay the passionate and potentially damaging debate over slavery
in the new territories. For the purposes of the 1784 ordinance on the western lands, it was
enough to require the new states to maintain republican governments and not create
divisions within the original thirteen states that might damage the union. Since
Congress’s sole purpose was to save the union by expanding it, a sectional battle over
slavery in the territories would be counterproductive, if not disastrous.
A final principle added during the debate concerned protecting absentee
landowners and land speculators from burdensome taxes. It read, “That the lands of non-
resident proprietors shall, in no case, be taxed higher than those of residents within any
new State, before the admission thereof to a vote by its delegates in Congress.”
44
This
43
Yale, “1784 Report”.
44
Yale, “1784 Report”.
61
would seem to be a curious principle to include, given Congress’s hostility towards land
speculators. Congress believed that speculators were in competition with Congress over
the control of western lands. The development of western settlements would be out of the
control of Congress if speculators purchased large plots of land and then resold them on
their own terms. However, speculation was not the real issue. It was balancing the public
needs with private investment that concerned Congress. Speculation in western lands was
acceptable if it served the public good. Therefore, the limitation on taxing absentee
landowners served notice to land speculators that Congress would control the land market
but support some speculation. The minimum price of a dollar an acre set by Congress
limited the size of investment in western lands and was an example of managing the
development of western lands.
45
The principles for statehood established congressional control over the creation
and admission of new states to the union. During the debate over the ordinance, Congress
continued to expand its sovereignty over the western territories. In the case of the western
territories, Congress transferred sovereignty to territories once they became states.
Congress began the process of creating new states as an imperial sovereign over the
western lands. It dictated conditions, required actions by territorial leaders, and limited
the involvement of local leaders and populations. However, the result of the process was
a group of new states equal to the original thirteen states.
When a territory met the principles set down in the ordinance, and the population
of the territory reached the population of the least numerous original state, it could send a
45
Onuf, “Liberty, Development”, 191.
62
delegate to Congress. This delegate could not vote until Congress voted the state into the
confederation. The original ordinance laid out the voting process for statehood:
Such state shall be admitted by its delegates into the Congress of the
United States, on an equal footing with the said original states: After
which the assent of two thirds of the United States in Congress assembled
shall be requisite in all those cases, wherein by the Confederation the
assent of nine States is now required. Provided the consent of nine states
to such admission may be obtained according to the eleventh of the
Articles of Confederation
Congress edited the voting process during the debate by removing the reference to the
eleventh article in the Articles of Confederation. The final version required “the consent
of so many states in Congress is first obtained as may at the time be competent to such
admission.”
Congress acknowledged that admitting a new state under its own initiative
was a step too far for its unauthorized actions and that there was no provision for adding
states to the union in the Articles.
Congress also added instructions to the ordinance for amending the Articles to
include a statehood vote. The members of Congress created principles for statehood in
the western territories that did not threaten the existing states. For Congress to
unilaterally add new states to the union and place them on equal footing with the original
states would be too much for the original states to accept. The state leaders would see this
as an abridgment of state authority by Congress and a blatant expansion of its power. The
instructions stated:
And in order to adapt the said Articles of Confederation to the state of
Congress when its numbers shall be thus increased, it shall be proposed to
the legislatures of the states, originally parties thereto, to require the assent
of two-thirds of the United States in Congress assembled, in all those
cases wherein, by the said articles, the assent of nine states is now
63
required, which being agreed to by them, shall be binding on the new
states.
46
Adding new states would weaken the voting power of the existing states. At a time when
sectionalism was becoming a political force and superseding state interests, the states
would not tolerate the creation of a new section in the union that might or might not
support the North’s or the South’s regional ambitions. Congress would have to ask the
existing states to amend the Articles of Confederation to create new states.
The closing paragraph of the ordinance revealed Congress’s concerns about the
legality of its actions and the authority required to implement the principles. The first line
stated, “That the preceding articles shall be formed into a charter of compact.” The phrase
“charter of compact” described a covenant with the thirteen states. Congress would
organize the western territories into states by agreement or “compact” with the states. As
Roger McCormick wrote in his essay concerning the 1784 ordinance, “Rather than an
ordinance, which was a legislative act, the committee presented Congress with quite a
different approach to the vexatious problem of bringing the new western states into the
Union.”
47
Political scientist Donald Lutz described a compact as “a mutual agreement or
understanding” that did not carry the weight of law.
48
Thus, Congress in the 1784
ordinance attempted to place binding, legal authority behind its actions without actually
creating a law. The Articles of Confederation did not give Congress the authority to
46
Yale, “1784 Report”.
47
Yale, “1784 Report”; Richard McCormick, “The ‘Ordinance’ of 1784,” The William and Mary
Quarterly, Third Series, Vol. 50, No. 1, Law and Society in Early America (Jan., 1993), 118-9. Accessed
August 12, 2013. http://www.jstor.org/stable/2947238.
48
Donald S. Lutz, “From Covenant to Constitution in American Political Thought,” Publius, Vol.
10, No. 4, Covenant, Polity, and Constitutionalism (Autumn, 1980), 107-8. Accessed August 22, 2013.
http://www.jstor.org/stable/3329746.
64
create laws that affected the states. Therefore, by labeling the ordinance a “charter of
compact” Congress skirted the issue of authority. Jefferson’s committee reinforced the
concept of a compact between Congress and the states with a second passage in the final
paragraph. The ordinance represented “fundamental constitutions between the thirteen
original states, and each of the several states now newly described, unalterable but by the
joint consent of the United States in Congress assembled, and of the particular State
within which such alteration is proposed to be made.”
49
Congress attempted to redefine
its role in national affairs and its relationship with the states. The states and Congress
would be equal partners in creating and admitting new states to the union.
Members of Congress considered two substantive amendments during the debate
over the ordinance. Elbridge Gerry of Massachusetts proposed an amendment that
specifically granted to Congress the right to form temporary governments in the
territories. This amendment seems redundant when the language and conditions of the
ordinance are considered. Congress assumed the role of an imperial sovereign over the
territories based on the already approved text of the ordinance. Gerry’s amendment read,
in part:
[Congress shall] in the interim to appoint a committee to report a plan,
which to be full consistent with the principles of the Confederation, for
connecting with the Union by a temporary Government the said
purchasers and Inhabitants of the said District, until their Number and
circumstances shall entitle them to form for themselves a permanent
government; [illeg.] permanent constitution for themselves and as citizens
of a free sovereign and independent state shall be admitted to a
representation in the Union.
50
49
Yale, “1784 Report”.
50
Berkhofer, 239.
65
Samuel Huntington of Connecticut proposed adding a clause that stated, “Provided such
Constitution shall not be incompatible with the republican principles which are the basis
of the Constitutions of the respective states in the Union.” While this amendment appears
a replication of previously stated rights, Gerry and Huntington wanted clear language
that, in addition to the principles already listed, the ordinance placed Congress in
complete control of the statehood process.
51
Before Congress voted on Gerry’s amendment and Huntington’s clause, David
Howell of Rhode Island offered a second amendment that would give more control of the
transitional governments to the settlers of the territories. His amendment contained
Huntington’s clause but modified Gerry’s plan for a committee to oversee the territories’
governments. Howell wanted to require Congress to seek the approval of the settlers in
governing the territories before they achieved statehood. The important passage in
Howell’s amendment was:
[Congress] for this purpose a committee be appointed with instructions to
said committee to devise and report a plan for the government of the
inhabitants and the due administration of justice, which if agreeable to the
settlers shall be their form-of temporary government until their number
and circumstances shall entitle them to a place among the States in the
union; when they shall be at liberty to form a free constitution for
themselves not inconsistent with the republican principles which are the
basis of the constitutions of the republican States in the Union.
52
The phrase “which if agreeable to the settlers” placed control of the transitional
government in the hands of the settlers. This was similar to the situation Congress faced
in dealing with the original thirteen states. Congress did not have any coercive authority
51
Berkhofer, 239-40.
52
Berkhofer, 240.
66
over the states to force them to comply with its requests. Congress rejected Howell’s
amendment and approved Gerry’s amendment. Congress created a committee to draft a
plan for transitional governments in the territories. Congress would be in complete
control of the statehood process.
The 1784 ordinance was Congress’s first attempt at devising a plan to expand the
union. Congressional leaders took advantage of the opportunity to expand the sovereignty
of Congress. They used the powers of Parliament and the king as a guide to create a
centralized, imperial sovereign. The attempt was tentative, experimental, and limited.
After all, an imperial sovereign government was exactly what the American Revolution
removed. However, the expansion and the very survival of the union demanded
centralized control over the territories. The 1784 ordinance became a basis for further
congressional actions. The Articles of Confederation were too restrictive, weak, and
inflexible for Congress to maintain the union. Congress understood the flaws in the
confederation. The land ordinance of 1784 was a starting point in establishing
congressional sovereignty.
Chapter 3
The Land Ordinance of 1785
The Land Ordinance of 1785 was an expansion of congressional authority similar
to that in the 1784 ordinance. However, it is a mistake to dismiss the 1785 ordinance as
simply a furthering of the principles established in the 1784 document. The 1785
ordinance established a practical framework for the distribution of public lands that
defined American expansion throughout the nineteenth century. As Daniel Elazar wrote
in his article “Land and Liberty in American Society”, “The [1785] Land Ordinance
established the basis for organizing, dividing, and disposing of the public domain. The greatest
act, and the most American of national planning ever undertaken in the United States, it
established a system that put an indelible stamp on 80 percent of the American landscape, one
that worked to enhance liberty rather than restrict it.”
1
While the 1784 ordinance contained
the guiding principles in assigning statehood to the territories, the ordinance of 1785 was
specific and clear on the allocation of land within the new states. The 1785 ordinance
described the process for surveying townships and creating parcels for buyers and for
congressional use. It also made clear to all potential settlers and land speculators that
Congress would dictate land sales in the territories. The Land Ordinance of 1785
reflected the maturing sense of sovereignty in Congress and its expanded authority
concerning the states and people in the northwestern territories.
2
1
Daniel J. Elazar, “Land and Liberty in American Society,” Publius, Vol. 18, No. 4, Land and
Liberty in American Society: The Land Ordinance of 1785 and the Northwest Ordinance of 1787 (Autumn,
1988), 1. Accessed October 7, 2013. http://www.jstor.org/stable/3330330.
2
Bernard W. Sheehan, “The Ordinances of the 1780s,” OAH Magazine of History, Vol. 2, No. 4,
The Development of Nationalism and the Northwest Ordinance (Fall, 1987), 10. Accessed July, 10, 2013.
http://www.jstor.org/stable/25162560.
68
It was important for Congress to act quickly. Settlers were streaming across the
Ohio into the territories and establishing farms and small communities without clear title
to their lands. Squatters settled on Indian land, which could cause retaliatory raids and the
necessity for military intervention. The flow of settlers into the region continued
unabated by governmental pressure. Neither Virginia’s government before its land
cession to Congress, or Congress afterwards controlled the flood of settlers into the Ohio
region. In the ordinance of 1785, Congress, in an attempt to dissuade unauthorized
settlement and to control expansion, proclaimed that it would not encourage emigration,
nor recognize the governmental structures created by settlers.
3
Congressional leaders created a process that revealed their determination to
organize the public lands to suit their purposes. When surveyors laid out seven townships
in the territories, all the original states would hold public land auctions. The base price
for an acre was set at one dollar. This would dissuade investors from purchasing large
tracts for resale. In addition, by surveying the land before offering it for purchase,
Congress would establish clear titles to the land, regardless of squatters already living on
the land. As Peter Onuf wrote, “This meant clearing squatters off the land, by force if
necessary.” Surveyors would organize and clarify title to the public land as if the
squatters had never set foot on it. Congressional leaders developed a growing confidence
in centralized authority over the northwestern territories and the people already in them.
4
I
3
Onuf, “Liberty, Development, and Union”, 187-9. Onuf, “Origins”, 166.
4
Indiana Government. “Land ordinance of 1785.” Indiana Historical Bureau. Accessed
September 14, 2013. http://www.in.gov/history/2478.htm; Onuf, “Liberty, Development, and Union”, 189.
69
Before reviewing the ordinance and its language, it is important to place the 1785
agreement within the context of the times. While a committee was drafting the ordinance,
a congressional debate took place that reflected the original states’ sensitivity towards
congressional authority. In February of 1785, Congress debated changing the Articles of
Confederation to place trade regulation in the realm of congressional authority. This
would require a change to Article IX of the Articles. The original text of Article IX
stated:
The United States in Congress assembled, shall have the sole and
exclusive right and power of …entering into treaties and alliances,
provided that no treaty of commerce shall be made whereby the legislative
power of the respective States shall be restrained from imposing such
imposts and duties on foreigners, as their own people are subjected to, or
from prohibiting the exportation or importation of any species of goods or
commodities whatsoever.
5
The proposed change read:
The United States in Congress assembled shall have the sole and exclusive
right and power of…entering into treaties and alliances, of regulating the
trade of the States, as well with foreign Nations, as with each other, and of
laying such imposts and duties upon imports and exports, as may be
necessary for the purpose.
6
James Monroe supported and led the fight for the proposed change. He believed that
congressional regulation of trade would make agreements with European states easier as
it would bring uniformity to treaties by using the Model Treaty as a guide.
7
Monroe
5
Yale, “Articles”.
6
W. C. Ford et al., eds., Journals of the Continental Congress, 1774-1789. 34 vols. (Washington,
D.C.: U.S. Government Printing Office, 1904-193), 28:201). Accessed August 14, 2013.
http://memory.loc.gov/ammem/amlaw/lwjc.html.
7
The “Model Treaty” was a plan for establishing trade agreements with European states. The plan
stipulated that any agreement should be reciprocal, and trade should be on the freest terms possible. Any
treaty should also give the most liberal terms to American shipping during times of war. For a full
discussion of the Model Treaty and America’s relations with European states, see Eliga H. Gould, Among
the Powers of the Earth, (Cambridge (MA): Harvard University Press, 2012).
70
worked to put as many nationalists on the drafting committee as possible. Jefferson, now
in France, supported the change. In a letter to Monroe, Jefferson wrote, “I am also much
pleased with the proposition to the states to invest Congress with the regulation of their
trade, reserving its revenue to the states. I think it a happy idea, removing the only
objection, which could have been justly made to the proposition. The time too is the
present, before the admission of the Western states.”
8
However, the proposal ran into
difficulties. As historian Harry Ammon wrote, “The plan to revise article nine was coolly
received.” The states were not prepared to surrender a fundamental right like trade
regulation to Congress. New England representatives were sympathetic to the change but
needed time to overcome the anti-centralization beliefs of Northeastern people. Virginia
delegates Richard Henry Lee and William Grayson were against it. Monroe clearly
understood that the change to Article IX would end the debate over whether the United
States was a confederacy or a union. Placing state trade relations, in effect the economies
of the states, in the hands of Congress would severely restrict, if not end, state
independence. In a letter to Jefferson in June of 1785, Monroe described the states’ fear
of giving Congress control of trade agreements and the effect would have on Congress
and the states. Monroe wrote:
The report upon the 9th article hath not been taken up. The importance of
the subject & the deep and radical change it will create in the bond of the
Union together with the conviction that something must be done, seems to
create an aversion or rather a fear of acting on it. If the report should
ultimately be adopted it will certainly form the most permanent and
powerful principle in the confederation …the effect of this report would
be to put the commercial economy of every state entirely under the hands
of the Union, the measure necessary to obtain the carrying trade, to
encourage domestic by a tax on foreign industry, or any other ends which
8
Yale Law School, “Letters of Thomas Jefferson: To James Monroe, Paris, June 17, 1785.”
Avalon Project. Accessed September 14, 2013. http://avalon.law.yale.edu/18th_century/let28.asp.
71
in the changes of things become necessary, will depend entirely on the
Union.
In the end, Congress rejected the change to Article IX. The nationalists lost the fight to
centralize and standardize the authority to negotiate trade agreements.
9
The concept of
expanded congressional authority over the original thirteen states was too radical and too
threatening to the states. It was only in the northwestern territories that Congress would
be able to expand its authority and develop its own sovereignty.
II
The preamble of the ordinance clearly described Congress’s legal rights over the
territories. Congress based its authority to control the northwestern territories upon the
land cessions from the various original states and a legal purchase of the lands from the
Indian tribes living in the territories. The first paragraph of the ordinance read:
An ORDINANCE for ascertaining the Mode of disposing of LANDS in
the WESTERN TERRITORY. BE IT ORDAINED BY THE UNITED
STATES IN CONGRESS ASSEMBLED, THAT the territory ceded by
individual states to the United States, which has been purchased of the
Indian inhabitants, shall be disposed of in the following manner.---
10
Ownership of the land was not as simple or as clear as the opening paragraph presumed.
As Historian Robert Berkhofer wrote, “Essentially, then, the issue of legal status is
phrased in terms of whether the United States in Congress Assembled exercised de facto
control in addition to de jure title in the Old North-west. According to this view, to the
degree that Congress possessed and asserted actual authority, then the 1784 Ordinance
9
Harry Ammon, James Monroe: The Quest for National Identity, (Charlottesville: University of
Virginia Press, 1990), 51; Stanislaus Murray Hamilton (ed.) The Writings of James Monroe, 7 volumes,
(New York: Putnam and Sons, 1898-1903), 1:84. Accessed September 14, 2013.
https://play.google.com/books/reader?id=GGMSAAAAYAAJ&printsec=frontcover&output=reader&authu
ser=0&hl=en&pg=GBS.PP1
10
Indiana Government, “Land ordinance of 1785,”
72
was in effect.”
11
Berkhofer was referring to the phrase in the 1784 report, “whensoever
the same shall have been purchased of the Indian Inhabitants & offered for sale by the
U.S.”
12
The 1784 report presumed congressional purchase of the land from the Indian
tribes in the territories. However, Congress did not purchase the land between the writing
of the 1784 report and the 1785 ordinance. The change in tense from “shall have been
purchased” in 1784 to “has been purchased” in 1785, suggests a positive action on the
part of Congress to gain legal title to the territories, yet Congress did not attempt to
purchase Indian lands during the time between the two ordinances. The change in tense is
attributable to the fact that the national treasury was in debt and had no money for land
purchases, as well as congressional leaders anticipating the purchase of lands as settlers
moved west and put pressure on Native Americans. Purchasing Indian lands would occur
as funds became available.
In fact, Congress did not address ownership of the territories until 1786 and even
then, only acknowledged that the lands belonged to the Indian tribes. In An Ordinance for
the Regulation of Indian Affairs, passed in August of 1786, Congress organized the
Indian lands into two districts. The northern district included the lands north of the Ohio
River and west of the Hudson River. The southern district included all the Indian tribes
within the boundaries of the United States. Congress placed strict controls on access to
the Indian tribes and their lands. The 1786 ordinance stated,
That no person, citizen or other, under the penalty of five hundred dollars,
shall reside among or trade with any Indian or Indian nation, within the
territory of the United States, without a license for that purpose first
obtained from the Superintendant [sic] of the district...nor shall permits or
11
Berkhofer, 261.
12
Yale, “1784 Report”.
73
passports be granted to any other persons than citizens of the United States
to travel through the Indians nations, without their having previously made
their business known to the superintendant of the district, and received his
special approbation.
13
The requirements for a license to trade with Indians as well as a passport to travel through
Indian lands reveals that Congress considered Indian lands to be owned by the tribes
residing in the area. Great Britain ceded the lands to America in the treaty that ended the
war. However, Congress still considered these lands “Indian territory” in 1786. The land
ordinance of 1785 was premature in its belief that Congress had purchased the territories
for resale.
The next two sections of the 1785 ordinance concerned the administration of the
program to survey the territories. Congress appointed surveyors for the new states and
placed them under the direction of the US geographer who administered the program.
The geographer reported directly to Congress on the progress of the surveys and any
issues concerning the surveyors:
The geographer, (under whose direction the surveyors shall act) shall
occasionally form such regulations for their conduct, as he shall deem
necessary; and shall have authority to suspend them for misconduct in
office, and shall make report of the same to Congress or to the committee
of the States; and he shall make report in case of sickness, death, or
resignation of any surveyor
14
One should take this passage at face value as Congress simply wanted to pass off the day-
to-day management of the program to a capable administrator who could report problems
as necessary.
13
Ford, JCC, 492, http://memory.loc.gov/cgi-
bin/query/r?ammem/hlaw:@field(DOCID+@lit(jc0316)).
14
Indiana Government, “1785 Ordinance”.
74
The instructions to the surveyors revealed the detailed control Congress wanted
over the creation of the new states. These instructions concerned the size of towns and
their layout. Congress feared uncontrolled settlement as well as speculation by land
companies. If all the northwestern territories were available at one time, the settlers
would be dispersed and ungovernable. The passage instructed the surveyors to, “divide
the said territory into townships of six miles square, by lines running due north and south,
and others crossing these at right angles, unless where the boundaries of the late Indian
purchases may render the same impracticable, and then they shall depart from this rule no
farther than such particular circumstances may require.”
15
Congress was fearful of
antagonizing the Indians of the area. By surveying the lands before purchase, Surveyors
could avoid Native American lands. As Timothy Pickering, in a letter to Elbridge Gerry
explained:
But if adventurers should be permitted to ramble over that extensive
country, and take up all the most valuable tracts, the best lands will be in a
manner given away, and the settlers thus dispersed, it will be impossible to
govern; they will soon excite the resentments of the nations and bring on
an Indian war; to the destruction of multitudes of the settlers and to the
injury of the public.
16
One way to prevent an Indian war was to survey towns before offering any land for sale.
Congress would only acknowledge titles to land surveyed by congressional appointees. It
also allowed Congress to control the release of public lands for sale. Congress would
offer only a certain amount of land at any single auction. This would increase the value of
lands sold at later auctions. Settlers would fill a congressionally surveyed state before
15
Indiana Government, “1785 Ordinance”.
16
Charles H. King (ed.), “Pickering to Gerry, March 1, 1785,” The Life and Correspondence of
Rufus King, 9 volumes, (New York: Putnam’s Sons, 1894-1900), 1:72-73.
75
Congress opened another territory for settlement. This made the lands to the west more
valuable. Congressional leaders were suspicious if not hostile towards uncontrolled
speculation. However, there were limits to that hostility. Even Congressional leaders
were not above taking advantage of an investment opportunity. As Pickering wrote to
Gerry, “But if there must be a scramble, we have an equal right with others and therefore
the information desired in the beginning of this letter may be of essential importance.”
17
Pickering and Gerry understood that if congressional efforts failed to stem speculation in
the territories, then there was no reason that they should not join in the land grab and
profit from their knowledge.
Expansion into the western lands had to be a national program designed by
Congress. By controlling the development and settlement of the territories, Congress
would ensure that the union benefited from expansion into the west with economic
growth and population growth. Congressional representatives saw the territories as not
simply a new set of sovereign states, but as an extension of the union. It was this vision
that led to the tight controls on surveys and land sales. By insisting on congressional
surveys before auctioning land, Congress would open lands at its pace and not allow
settlers and speculators to drive expansion.
18
As mentioned above, the strict controls on passage through Indian lands and
trading with the tribes were reminiscent of the Proclamation of 1763 in which King
George III banned surveying and settling in the lands outside of the defined British
colonies. The language was similar as well. Congress placed the same tight, centralized
17
King (ed.), “Pickering to Gerry”.
18
Onuf, “Liberty, Development, and Union”, 204, 209-10.
76
control on interactions with the Indians as Parliament and King George had done over
twenty years before. Congress, just like Parliament before the war, understood that
settlers were streaming into the territories and provoking the Indians of the area. In
addition, foreign traders continued to deal with the various tribes. Violence against
settlers would require a military response that Congress wanted to avoid. Strict controls
on settlers and traders would ensure an orderly expansion of the union without a
corresponding war with Indian tribes. However, the 1786 controls Congress placed on
settlers were as ineffective as the 1763 controls placed on settlers by Parliament.
Congress dictated that each town be subdivided into 640-acre lots. This appears to
be a compromise between the various regions of the union. “The plats of the townships
respectively, shall be marked by subdivision into lots of one mile square, or 640 acres.”
19
Sectional identities were in their nascent state at this time but the people of the various
regions of the country had already formed differing cultures concerning land settlement.
The people of New England preferred settlement through township surveys and
subdivision. This fostered a sense of community built around groups that settled new
areas together. Mid-Atlantic residents preferred the purchase of surveyed lands. This
allowed settlers to create a degree of privacy–whether communal or personal.
Pennsylvania Quakers preferred social separation from other groups. In addition, land for
the mid-Atlantic settlers meant economic advancement. This led to the creation of
businessmen-farmers in the Ohio region. Southerners believed in settling as much land as
possible through “squatting”. Their settlement philosophy, predicated on structures of
“class and caste”, led to the plantation economy concept for land and stressed the
19
Indiana Government, “1785 Ordinance”.
77
importance of maintaining tradition in lifestyles. The three regions’ differing concepts for
land needed to be reconciled in the 1785 ordinance. The 640-acre lot size garnered
enough support from all the regions to be acceptable.
20
Not content to subdivide townships, Congress claimed specific lots within each
township for its own use and a portion of any mining ventures. The provision that one
third of all mining projects belonged to the government was a revenue generator. Note
the passage that reserved lots for public education and religion. The inclusion of these
passages stems from political ideologies as well as economic realities. The ordinance
stated:
There shall be reserved for the United States out of every township, the
four lots, being numbered, 8, 11, 26, 29, and out of every fractional part of
a township, so many lots of the same numbers as shall be found thereon.
There shall be reserved the lot No. 16 of every township, for the
maintenance of public schools within the said township. Also one third
part of all gold, silver, lead and copper mines, to be sold, or otherwise
disposed of, as Congress shall hereafter direct.
21
The inclusion of a lot for education shows the influence of New England leaders and their
culture. New England had a history of promoting education in townships. By specifically
including a lot for schools, Congress was hoping to entice more settlers and thus, drive up
the cost of the available land.
22
William Grayson wrote to George Washington in April of
1785, “That the idea of a township with the temptation of a support for religion and
education holds forth an inducement for neighborhoods of the same religious sentiments
20
Elazar, 5-8.
21
Indiana Government, “1785 Ordinance”.
22
Dennis Denenberg, “The Missing Link: New England’s Influence on Early National Education
Policies,” The New England Quarterly, Vol. 52, No. 2 (June, 1979), 222-3. Accessed October 1, 2013.
http://www.jstor.org/stable/364840.
78
to confederate for the purpose of purchasing and settling together.”
23
The inclusion of a
lot for education and a lot for religion expressed congressional leaders’ desire for high
land values, as well as their ideology concerning education and religion. Only the lot
reserved for education survived the congressional debate. Congress rejected the
requirement that reserved a lot for religion. According to congressional leaders, state
supported education and the lack of a state supported religion would both support the
liberty of the people, since a free people had to be an educated people and they should be
free of a state religion. Historian Dennis Denenberg wrote, “If indeed congressional interest
in settlement were genuine, whether from an economic standpoint or from early stirrings of
manifest destiny, then the establishment of schools served a very utilitarian purpose.” Congress
made a positivist statement about the value of education to settlers, but did not see the
same general economic value in religion.
24
Any lots not sold after eighteen months would
revert to direct congressional control. The Board of Treasury would dispose of them
under the direction of Congress.
25
The final section of the ordinance concerned land bounties for veterans of the
Revolution. Congress passed resolutions in September of 1776 and August of 1780
granting land bounties to veterans of the war “who had engaged or should engage in the
service of the United States during the war, and continue therein to the close of the same,
or until discharged by Congress, and to the representatives of such officers and soldiers
23
Edmund C. Burnett (ed), Letters of Delegates to Congress (Washington, D. C., 1936), XXII,
339. Accessed October 1, 2013. http://memory.loc.gov/cgi-
bin/query/r?ammem/hlaw:@field(DOCID+@lit(dg022260))
24
Dennenberg, 223; Elazar, 2.
25
Indiana Government, “1785 Ordinance”.
79
as should be slain by the enemy, in the following proportions, to wit.”
26
The ordinance
went on to reserve a section of the Ohio country specifically for veterans. However, even
the noble act of rewarding veterans was not without issues. The land between the Little
Miami River and the Scioto River is in southern Ohio and fronts the Ohio River across
from Kentucky. This was prime territory for settlers who wished to use the rivers to
transport agricultural commodities to markets. Settlers were already in the area due to its
easy access to water. When Congress reserved the lands for veterans, these settlers would
potentially lose their lands. The passage declared:
Be it ordained, that no part of the land included between the rivers called
little Miami and Scioto, on the northwest side of the river Ohio, be sold, or
in any manner alienated, until there shall first have been laid off and
appropriated for the said officers and soldiers, and persons claiming under
them, the lands they are entitled to, agreeably to the said deed of cession
and act of Congress accepting the same.
27
Once again, Congress showed no concern about settlers or their farms as leaders
continued to put the interests and the very existence of the union ahead of all other
concerns. Rewarding veterans was not as straightforward as hoped. Congress’s
methodical and detailed oversight of surveying the lands frustrated veterans who might
wait years to receive their promised land.
28
In fact, Congress did not fully settle land
claims for veterans until the adoption of the Constitution in 1788. Even when granted a
land claim, a veteran had to travel to the Ohio region, locate the land, build a home, and
establish a new life. This was beyond the abilities and finances of many ex-soldiers. More
26
Indiana Government, “1785 Ordinance”.
27
Indiana Government, “1785 Ordinance”.
28
McCormick, 430.
80
typical was the experience of Joseph P. Martin of Connecticut who received a land
bounty in Ohio for his service in the war, only to lose it to a speculator.
29
III
The Land Ordinance of 1785 addressed the connection between private ownership
of land and individual liberty. It also specifically provided for public education, thus
connecting good, republican virtues and a knowledgeable citizenry. Finally, it did not
provide for support for religion. Congress declined to connect republican government and
state-supported religion.
30
Congress placed strict controls on growth in the west and its
ideological foundations. The territories would not be free to direct their growth or
distribution of lands as each one saw fit. Congress, by detailing the organization of
towns, made sure that each new state fostered republican citizens that would support the
union. Congress did not believe that settlers were capable of republican government.
However, with the proper structures in place – New England style townships, public
education, a relatively narrow range of wealth among the citizens, and freedom of
religion, the settlers would develop into citizens that supported and enhanced the union.
When territories became states, they would contain republican institutions that copied the
existing models in other states.
Congress did not pass the 1785 Ordinance solely for creating republican citizens.
Congressional leaders understood the economic benefits of their actions. The ordinances
of 1784 and 1785 created a national market for western lands. The 1784 ordinance
29
Martin, J.P. Private Yankee Doodle. Ed. by George F. Scheer, (Fort Washington (PA): Eastern
National Books, 2000), xiv.
30
Elazar, 2.
81
established the principles for managing the western lands. The 1785 ordinance was
specific and practical in its description of Congress’s plans for the organization and
disposal of land in the territories. By taking total control of the territories, ensuring that
the territories would become republican states and part of the union, and creating a
uniform, congressionally backed title process for obtaining land, the territories became
more valuable. The western lands would generate more income for the cash-starved
union if Congress saw to every detail of the land sales. Settlers and land speculators could
confidently invest their money and labor in the newly available lands knowing that
Congress backed their efforts.
The 1785 ordinance was a strong congressional statement in support of republican
ideology. However, viewing the document as only drafted for the good of the union
misses the more practical aspect of it. Congress had war debts and needed funds to pay
European lenders. The sale of the western lands would allow Congress to continue to pay
its debts. Congressional leaders understood land speculation, investment, and how to
drive up the price of land. Congress acted as a speculator in how it established and sold
the land after claiming ownership. Settlers and speculators would pay more for a plot of
land if the title was clearly established, land was in short supply, and surveys already
completed. Congressional leaders wanted republican states but at as great a profit as
possible. The 1785 ordinance was both an investor’s guide and a republican statement of
American political theory.
Chapter 4
The Northwest Ordinance of 1787
The Northwest Ordinance of 1787 was a defining document for republican
government in the United States. Congress defined republicanism, required it for all
future states that entered the union, and established the expansionist philosophy for the
United States throughout American history. As historian Jack Eblen wrote, “[The
ordinance’s] basic ideas were to be applied more or less successfully in the United States
possessions for over 175 years.”
1
The 1787 ordinance also described a congressional
imperial sovereignty based on the British Empire. It created a colonial model for new
territories that placed Congress in a position of a sovereign similar to the position of
Britain’s Parliament. The ordinance of 1787 was the result of years of negotiations and
debates over the western lands. In essence, the Northwest Ordinance definitively
answered the question, “Is Congress sovereign over the new states?” The answer to that
question was simple according to the 1787 Ordinance. The Northwest Ordinance of 1787
established Congress as an imperial sovereign over the Ohio territories and created
subjects of the settlers in the region.
I
The wording of the ordinance established a clear, dominant role for Congress in
which it directly controlled the creation, governance, and process to statehood for all
territories. Gone were the half measures of the previous ordinances. In fact, the
Northwest Ordinance revoked the 1784 and 1785 ordinances. Congress grew more
1
Jack E. Eblen, “Origins of the United States Colonial System: The Ordinance of 1787,” The
Wisconsin Magazine of History, Vol. 51, No. 4 (Summer, 1968), 294. Accessed October 17, 2013.
http://www.jstor.org/stable/4634355.
83
confident of its role and developed a mature understanding of sovereign, imperial rule in
the 1780s, due to its experience in administering the western lands, as well as the failure
of the Articles of Confederarion. The territories were colonies and their relationship to
Congress was subservient. It is ironic that the Northwest Ordinance created a colonial
system that was a duplicate of the British system that drove American leaders to
revolution.
2
Congress began organizing the territories from scratch. The opening section of the
ordinance established Congress’s authority to decide the size and number of the new
states. Section one of the ordinance stated:
Be it ordained by the United States in Congress assembled, That the said
territory, for the purposes of temporary government, be one district,
subject, however, to be divided into two districts, as future circumstances
may, in the opinion of Congress, make it expedient.
3
The western lands were one territory or “district” that Congress would carve up into new
territories as it saw fit.
Section 2 established the rights of inheritance in the territories. Placing a
guarantee for the rights of inheritance of property owners second in the ordinance seemed
an odd priority. However, it revealed the opinions of congressional leaders concerning
the capabilities of westerners to govern themselves. Congress feared the creation of non-
republican institutions in the west. By placing a detailed inheritance law in the ordinance,
the framers signaled their intentions to ensure eastern laws and governmental procedures
took hold in the west. Congress took advantage of every opportunity to control the
2
Eblen, 295.
3
Yale Law School, “Northwest Ordinance: July 13, 1787,” Avalon Project, Accessed November
23, 2013. http://avalon.law.yale.edu/18th_century/nworder.asp.
84
development of the west to ensure protection and support for the union with republican
institutions established in the East. That included a fundamental right like that of
inheritance.
4
The ordinance organized territorial development into three stages. The first stage
was the “district stage”. Congress defined this stage in sections 3 through 8 of the
ordinance. Each of these sections created a centralized, congressionally controlled office
or power. Section 3 concerned the appointment of a governor. Congress appointed a
governor who held office at Congress’s discretion. The section read:
Be it ordained by the authority aforesaid, That there shall be appointed
from time to time by Congress, a governor, whose commission shall
continue in force for the term of three years, unless sooner revoked by
Congress; he shall reside in the district, and have a freehold estate therein
in 1,000 acres of land, while in the exercise of his office.
5
James Monroe, one of the principle architects of the ordinance, inserted this into the text.
He supported centralizing all territorial authority under a single governor at the beginning
of the territorial process.
Sections 4 and 5 defined the appointment and duties of judges and secretaries and
empowered the appointed governor and judges to rule over the district using laws from
the original thirteen states. Section 4 read in part, “There shall be appointed from time to
time by Congress, a secretary, whose commission shall continue in force for four years
unless sooner revoked…There shall also be appointed a court to consist of three
judges…and their commissions shall continue in force during good behavior.”
6
Section 5
4
Eblen, 313.
5
Yale, “Northwest Ordinance”.
6
Yale, “Northwest Ordinance”.
85
empowered the appointed governor and judges to rule over the district using laws from
the original thirteen states:
The governor and judges…shall adopt and publish in the district such laws
of the original States, criminal and civil, as may be necessary and best
suited to the circumstances of the district, and report them to Congress
from time to time: which laws shall be in force in the district until the
organization of the General Assembly therein, unless disapproved of by
Congress; but afterwards the Legislature shall have authority to alter them
as they shall think fit.
7
The absolute legal control of Congress through its appointed governor and judges in the
districts is an example of the imperial sovereignty exercised by Parliament before the
Revolution. In fact, without representation in Congress or a local assembly, the settlers in
the district took on the role of subjects to a monarchical sovereign. Even when settlers
formed a local assembly, Congress could void any local laws it deemed inappropriate or
illegal. The passage stated that local assemblies could “alter [laws] as they shall think
fit”, but it was unclear when or how this was to occur.
A similar debate over the undefined rights possessed by subjects was at the heart
of the colonial protests of the 1760s. James Otis addressed the subject in his pamphlet
The Rights of the British Colonies Asserted and Proved written in 1763. Otis stated,
“Every British subject born on the continent of America, or in any other of the British
dominions, is by the law of God and nature, by the common law, and by act of
parliament, (exclusive of all charters from the Crown) entitled to all the natural, essential,
inherent and inseparable rights of our fellow subjects in Great Britain.”
8
He went on to
7
Yale, “Northwest Ordinance”.
8
Liberty Fund, “The Rights of the British Colonies Asserted and Proved,” The Forum, Accessed
November 23, 2013,
http://oll.libertyfund.org/index.php?option=com_content&task=view&id=1069&Itemid=264.
86
list those rights which included local rule based on the consent of the governed, a ban on
arbitrary legislation, and most importantly, no legislature could not transfer the power to
make laws to any other governing body.
9
The citizens of a society had a natural right to
establish their own local assembly. Otis categorically stated that the rights of citizenship
were unalienable and the limits of government were specific and rigid. Otis’s protest
against parliamentary rule could apply to that of the Continental Congress in 1787.
According to Otis, settlers did not surrender their rights when they migrated overseas.
One would expect Otis to apply this principle to settlers that migrated over a mountain
range or a river, as well as an ocean.
By the 1780s congressional and local leaders no longer agreed with Otis’s
position. In 1788, newly appointed Governor Arthur St. Clair arrived in the Ohio district
to establish local government. St. Clair considered the settlers of the Ohio region to be
“subjects” of Congress. In a letter to Oliver Wolcott, St. Clair wrote, “The truth is, the
Territory is a dependency of the United States, not as yet an integral part of them, but
capable of becoming so at a future day.” He went on to state, “The object of the
Government was to extend the population of the country; and, as local circumstances
would have rendered the new settlements inconvenient parts of the United States, they
determined to effect it by colonizing; different stages in the progress of the colonies were
contemplated and provided for.” St’ Clair’s reference to the stages of progress is critical
to understanding congressional leaders’ logic. St. Clair and his supporters believed that
settlers ceased to be American citizens with rights and became “subjects” of Congress
when they left the states and entered the Ohio district. However, their status was not
9
Liberty Fund, “Otis”.
87
comparable to that of American colonists before the Revolution. Their status hinged upon
the definition of “territory”. As Peter Onuf argued, “The developmental model…proved
to be central to the very idea of ‘territory’. ‘Territory’ suggested both ‘colony’–the
beginning point–and ‘state’–the end.”
10
In essence, the settlers left their rights as
American citizens behind them when they migrated to the district. However, they
regained their rights when the statehood process reached a certain stage. The ordinance
represented a “compact” between the settlers and Congress. Congress would rule as a
sovereign in the first stage when local governmental structures were not possible, and
transfer sovereignty as the settlers’ numbers increased and local rule was feasible.
Under the British concept of imperial rule in place before the Revolution, the
American colonies did not have a process for gaining political sovereignty. The
Northwest Ordinance included such a process. This made the temporary classification of
“subject” for settlers acceptable within republican government. The opponents of St.
Clair employed the language of the Revolution to protest the loss of their rights. Self-
government was not a privilege but a right. They invoked the logic of James Otis to
protest their loss of rights, no matter how temporary that loss might be. The debate over
the rights of settlers and the imperial rule of Congress continued to be a contested point
as settlers eventually asserted their rights through a territorial government and stripped
the governor of his powers.
11
10
Peter Onuf, Statehood and Union, (Bloomington: Indiana University Press, 1987), 72.
11
William Henry Smith (ed), The St. Clair Papers, (Cincinnati: Robert Clarke and Co., 1882, Vol.
II, 378, 382), Google Books ebook; Peter Onuf, Statehood and Union, (Bloomington: Indiana University
Press, 1987), 69-76.
88
Section 6 assigned the role of commander in chief of the territorial militia to the
congressionally appointed governor. Control of the military within a state was one of the
defining criteria for a modern European state. Congressional leaders understood the
importance of this authority. The section stated:
The governor, for the time being, shall be commander in chief of the
militia, appoint and commission all officers in the same below the rank of
general officers; all general officers shall be appointed and commissioned
by Congress.
12
The leader or political body that controlled the military controlled the state. An army or
militia could enforce governmental sovereignty over the people of a state.
In 1787 and 1788 during the ratification debate over the Constitution, Luther
Martin an Anti-federalist in New Jersey wrote a series of essays entitled The Genuine
Information. In his ninth essay concerning the office of the Presidency, he addressed the
authority of the President as Commander-in-Chief of the military. A supreme ruler who
controlled the military was reminiscent of the British military under King George III.
Martin wrote, “That the army and navy, which may be encreased [sic] without
restraint…and commanded by him in person, will, of course, be subservient to his
wishes…in addition, to which the militia also are entirely subjected to his orders.”
13
The
idea of a supreme head of state, or in the case of the Northwest Territory, the governor,
controlling the military was very similar to King George III sending an army to quell the
rebellion in the colonies. Martin foresaw a time when the federal government would use
12
Yale, “Northwest Ordinance”.
13
Bernard Bailyn (ed), “The Genuine Information”, Debate on the Constitution, Vol 1, (New
York: Library of America, 1993), 654.
89
the military to crush state opposition. Congress readily assigned this same expansive
power to a territorial governor in 1787.
Sections 7 and 8 of the ordinance mentioned the transition from the original
colonial government stage to that of a territory with some self-government but with
limits. These sections gave sweeping powers to the governor to control the political and
legal structures in the colony. Section 7 stated in part, “Previous to the organization of the
general assembly, the governor shall appoint such magistrates and other civil officers in
each county or township, as he shall find necessary for the preservation of the peace and
good order in the same.” However, it shifted the authority to regulate these positions to
the assembly once it was functional. It did not shift the power of appointment. That
remained with the governor. “After the general assembly shall be organized, the powers
and duties of the magistrates and other civil officers shall be regulated and defined by the
said assembly; but all magistrates and other civil officers not herein otherwise directed,
shall during the continuance of this temporary government, be appointed by the
governor.”
14
Section 8 completed the instructions and definition of the authority of the
governor of the district. The governor appointed all judges and magistrates, as well as
civil officers. He was also empowered to create new townships until a territorial assembly
assumed the responsibility.
One of the most contentious issues during the 1770s that drove colonial leaders to
protest and revolution was the power of a royal governor. Before 1772, colonial
assemblies could moderate the power of a governor because legislators controlled the
governor’s salary. In the summer of 1772, Massachusetts Governor Thomas Hutchinson
14
Yale, “Northwest Ordinance”.
90
announced that Britain would pay the salaries of colonial governors. This made
governors completely independent of colonial assemblies. Parliament transferred the
salaries of colonial judges to London later in the year. This set off a storm of protest in
the colonies. Massachusetts radical Sam Adams wrote an essay in November of 1772
protesting the loss of accountability of the governor to the assembly. He began by
framing his protest within John Locke’s theory of natural laws and the creation of a
society. Adams wrote, “When men enter into society, it is by voluntary consent; and they
have a right to demand and insist upon the performance of such conditions and previous
limitations as form an equitable original compact.”
15
Any compact between members of a
society must have accountability built into the compact. Without the authority to control
leaders, the members of a society are at the mercy of a ruler. Sam Adams understood that
any leader who was not accountable to the people was a potential tyrant. The most
effective weapon against the creation of a tyrant was the purse. Adams stated:
Government was instituted for the purposes of common defence [sic], and
those who hold the reins of government have an equitable, natural right to
an honorable support from the same principle that "the laborer is worthy
of his hire." But then the same community which they serve ought to be
the assessors of their pay. Governors have no right to seek and take what
they please; by this, instead of being content with the station assigned
them, that of honorable servants of the society, they would soon become
absolute masters, despots, and tyrants.
16
To Adams, governors were “servants” not rulers. As servants, royal governors must
answer to their employers, the people of a colony or state. A just society had to make the
rulers directly accountable to the people they ruled. The royal governors’ independence
15
Constitution.org, “The Rights of the Colonists,” Liberty Library, Accessed November 24, 2013,
http://www.constitution.org/bcp/right_col.htm.
16
Constitution.org, “The Rights of the Colonists”.
91
from local assemblies in the American colonies in the early 1770s was a contributor to
the Revolution. In the Northwestern Ordinance of 1787, Congress employed the same
governmental structures used by the crown in the early 1770s. In 1787, congressional
leaders cast aside John Locke’s theories of government and natural law, as well as the
protests of Sam Adams, John Adams, and Thomas Jefferson in the previous decade, in
favor of strict congressional control over the newly created colonies in the west.
Congressional leaders understood the value of a governor who answered only to the
sovereign.
Congress moved beyond the first stage of colonial governance in section 9 and 10
when it established the conditions for the creation of a local assembly and the
replacement of representatives. Section 9 was the first section of the ordinance to define
how a district developed beyond the colonial stage. A district moved through the stages
of development into a state primarily due to the increase in its population. Sections 9
stated:
So soon as there shall be five thousand free male inhabitants of full age in the
district, upon giving proof thereof to the governor, they shall receive authority,
with time and place, to elect a representative from their counties or townships to
represent them in the general assembly: Provided, That, for every five hundred
free male inhabitants, there shall be one representative, and so on progressively
with the number of free male inhabitants shall the right of representation increase,
until the number of representatives shall amount to twenty five; after which, the
number and proportion of representatives shall be regulated by the legislature.
17
As Peter Onuf explained in his text Statehood and Union, settlers believed that a
“colonial” government was “only necessary because small numbers of scattered settlers
17
Yale, “Northwest Ordinance”.
92
could not conveniently exercise their rights, not because they were politically
incompetent.” Congressional oversight was only required until the population became
sufficient to govern the district through a local assembly. The district’s progress through
the stages of development paralleled the expansion of the settlers’ rights. All parties
agreed that only full statehood conferred full rights of citizenship on the settlers in a
district.
18
Section 10 simply described the process for replacing representatives who died in
office or the voters recalled. The section read, “The representatives thus elected, shall
serve for the term of two years; and, in case of the death of a representative, or removal
from office, the governor shall issue a writ to the county or township for which he was a
member, to elect another in his stead, to serve for the residue of the term.”
19
The eleventh section spelled out in detail the form and processes of the second
stage of government. Once a district moved beyond the colonial stage to the territorial
stage, the district’s residences could form an assembly. What is instructive about this
passage is the blend of local rule and congressional oversight. The elected representatives
nominated candidates for the legislative council but Congress chose the actual members.
Congress was, for the first time, limited in its actions in the district. The section began
with the composition of the government and the process to select its members.
The general assembly or legislature shall consist of the governor,
legislative council, and a house of representatives. The Legislative
Council shall consist of five members, to continue in office five years,
unless sooner removed by Congress; any three of whom to be a quorum:
and the members of the Council shall be nominated and appointed in the
following manner, to wit: As soon as representatives shall be elected, the
18
Onuf, Statehood, 73.
19
Yale, “Northwest Ordinance”.
93
Governor shall appoint a time and place for them to meet together; and,
when met, they shall nominate ten persons…and return their names to
Congress; five of whom Congress shall appoint and commission to serve
as aforesaid; and, whenever a vacancy shall happen in the council, by
death or removal from office, the house of representatives shall nominate
two persons, qualified as aforesaid, for each vacancy, and return their
names to Congress; one of whom congress shall appoint and commission
for the residue of the term.
20
Congress selected legislative council members, but Congress had to choose from a list
provided by the representatives. In addition, Congress alone possessed the right to
remove a council member. There was no mention of criteria for removal or allowing
representatives request the removal of a council member. The right to remove a council
member gave Congress the final say on the worthiness of a council member.
The second part of section eleven defined the legislative process. What is
instructive in this section is that the power of the governor remained absolute. Once
again, the territorial governor resembled a royal governor from before the Revolution.
The house of representatives and the legislative council did not possess the authority to
override a governor’s veto of a law. The passage read:
And the governor, legislative council, and house of representatives, shall
have authority to make laws in all cases…not repugnant to the principles
and articles in this ordinance established and declared. And all bills,
having passed by a majority in the house, and by a majority in the council,
shall be referred to the governor for his assent; but no bill, or legislative
act whatever, shall be of any force without his assent. The governor shall
have power to convene, prorogue, and dissolve the general assembly,
when, in his opinion, it shall be expedient.
21
20
Yale, “Northwest Ordinance”.
21
Yale, “Northwest Ordinance”.
94
The governor had the right to dissolve the legislature at any time he felt it necessary.
Congressional leaders allowed the inclusion of self-rule in the territory in this stage, but
ensured control of the process by empowering a governor to rule with absolute authority.
Section 12 concerned the election of a delegate to Congress. The important
passage of this section read, “As soon as a legislature shall be formed in the district, the
council and house…shall have authority, by joint ballot, to elect a delegate to Congress,
who shall have a seat in Congress, with a right of debating but not voting during this
temporary government.”
22
This limitation reflected the restricted rights of the settlers.
Full citizenship, which included representation in Congress with voting rights, was for
the citizens of states, not territories.
The final sections of the Northwest Ordinance concerned the rights of the settlers.
Sections 13 and 14 were a preamble to the articles listed in the ordinance. These sections
establish that the articles listed were, in essence, a bill of rights. Section 13 read, in part:
And, for extending the fundamental principles of civil and religious
liberty, which form the basis whereon these republics, their laws and
constitutions are erected; to fix and establish those principles as the basis
of all laws, constitutions, and governments, which forever hereafter shall
be formed in the said territory.
Section 14 continued to employ the ordinance as a compact between the
original states, the new states, and the people used in previous ordinances. It read:
It is hereby ordained and declared by the authority aforesaid, That the
following articles shall be considered as articles of compact between the
original States and the people and States in the said territory and forever
remain unalterable, unless by common consent, to wit:
23
22
Yale, “Northwest Ordinance”.
23
Yale, “Northwest Ordinance”.
95
The Northwest Ordinance created a bill of rights before any territories drafted
constitutions. The ordinance began with a bill of rights that would form the foundation
for future state constitutions. By agreeing to these articles, the territories entered into a
“compact” with the original states and would earn “their admission to a share in the
federal councils on an equal footing with the original States.” The new states would join
the original states with all the powers of state sovereignty.
The language used in these sections reflected a far more confident and mature
understanding by congressional leaders on their role in forming new states and expanding
the union. Congress moved beyond the absolute control of an imperial sovereign seen in
previous ordinances, to employing a mixture of imperial sovereignty with republican
elements to establish states that would support and enhance the union. Congressional
leaders understood the usefulness of imperial sovereignty but most importantly, they
understood its limitations and failings. The Northwest ordinance defined a flexible
sovereignty that adapted as the population in a territory grew and matured. British
imperial sovereignty was a dead end for its colonies. There was no escape from the
sovereign rule by Parliament. Congressional imperial sovereignty was flexible, evolving,
and most of all, a process to republican statehood.
II
The articles included in the ordinance reflect the importance of the document. The
previous ordinances of 1784 and 1785 defined the authority of Congress and its
relationship with the territories. However, four of the six articles in the 1787 ordinance
addressed the relationship between the people of the territories and the governments. The
two other articles summarized the principles of statehood previously stated in the
96
ordinance. When one views the articles as a philosophy of government, it is
understandable how some supporters considered the ordinance a constitution for the
territories, and why historian Bernard Sheehan wrote that it “read like the Bill of Rights
which was later attached to the Constitution.”
24
Article One established religious freedom for settlers in the territories. Congress
employed religion to support a secular republican government that would in turn, support
the union. However, Congress did not go so far as to link worship with republicanism. It
stated, “No person, demeaning himself in a peaceable and orderly manner, shall ever be
molested on account of his mode of worship or religious sentiments, in the said
territory.”
25
The inspiration for this article was the Massachusetts Constitution of 1780,
which included an article that stated:
It is the right as well as the duty of all men in society, publicly, and at
stated seasons, to worship the SUPREME BEING, the great creator and
preserver of the universe. And no subject shall be hurt, molested, or
restrained, in his person, liberty, or estate, for worshipping GOD in the
manner and season most agreeable to the dictates of his own conscience;
or for his religious profession or sentiments; provided he doth not disturb
the public peace, or obstruct others in their religious worship.
26
An important difference was the omission of the first sentence that called worship a “duty
of all men”. As mentioned before, the 1785 ordinance omitted a requirement for a plot of
24
Onuf, “Statehood”, 134; Sheehan, 11. Sheehan’s article was a comparison of the various
ordinances from the 1780s. Charting the evolution of congressional authority through the ordinances was
employed by historians of the period such as Peter Onuf and Richard McCormick in relation to the states,
both new and established. Other historians focus on the Northwest Ordinance and its impact on
constitutional theory and westward expansion.
25
Yale, “Northwest Ordinance”.
26
Philip B. Kirkland and Ralph Lerner (eds), “Massachusetts Constitution,” The Founders
Constitution, Vol 1, 11-12, Accessed November 30, 2013, http://press-
pubs.uchicago.edu/founders/print_documents/v1ch1s6.html.
97
land in each town reserved for religious worship. The omission of the sentence calling
worship a “duty” is consistent with congressional sensitivity towards public support for
religion. The unmolested right to practice one’s religion–without state influence–was a
useful tool to promote the well-being of the territory and thus, the union.
27
The second article was the closest Congress came to a formal bill of rights.
Congressional leaders used this article to link the rights of citizens to due process and the
protection of their property to republican government. Two phrases in this passage are of
great importance. The first is the inclusion of the right to “a proportionate representation
of the people in the legislature.” Only a proportional representation in the government for
the citizens would guarantee the rights of habeas corpus, trial by jury, and due process
for the protection of property. The first passage of the article declared, “The inhabitants
of the said territory shall always be entitled to the benefits of the writ of habeas corpus,
and of the trial by jury; of a proportionate representation of the people in the
legislature.”
28
Without representation, the people could lose these rights. Congress
included a second important phrase in this passage. The citizens of the territory had the
rights to “judicial proceedings according to the course of the common law.”
29
The phrase
“common law” referred to the theory behind the British common law. According to legal
theorists of the eighteenth century, no government could arbitrarily rule over a people due
to protections in the common law. The common law was an ancient legal instrument that
preserved the rights of the people, the privileges of Parliament, and the autonomy of the
27
Hill, 50.
28
Yale, “Northwest Ordinance”.
29
Yale, “Northwest Ordinance”.
98
common law courts. The common law was a body of traditions and customs that the
people accepted as binding and that developed from the time of the Saxons in England.
These customs protected the people from an abusive government. Congressional leaders
applied this concept to the territories to ensure legal protections for the settlers.
30
The remainder of Article Two concerned further rights held by the people of the
territory. These statements of rights concerned protection of property, due process, and
protection from unreasonable fines and penalties. This article was a limitation on
governmental power and established the rights of citizens. This passage linked directly to
the Bill of Rights in the Constitution.
All persons shall be bailable, unless for capital offenses, where the proof shall be
evident or the presumption great. All fines shall be moderate; and no cruel or
unusual punishments shall be inflicted. No man shall be deprived of his liberty or
property, but by the judgment of his peers or the law of the land; and, should the
public exigencies make it necessary, for the common preservation, to take any
person's property, or to demand his particular services, full compensation shall be
made for the same. And, in the just preservation of rights and property, it is
understood and declared, that no law ought ever to be made, or have force in the
said territory, that shall, in any manner whatever, interfere with or affect private
contracts or engagements, bona fide, and without fraud, previously formed.
31
The right to bail, moderate fines, a ban on cruel and unusual punishment, and the right to
jury trial and to due process are prominent in both the ordinance of 1787 and the future
Bill of Rights. Private property is protected from government seizure without
compensation. Both documents include restraints on government in its relationship with
individual Americans.
30
John Phillip Reid, The Ancient Constitution and the Origins of Anglo-American Liberty,
(Dekalb (IL): Northern Illinois University Press, 2005), 11.
31
Yale, “Northwest Ordinance”.
99
Article 3 addressed a range of rights and principles, as well as described an
ambiguous relationship with the Indians of the territory. The article began by completing
the principle first stated in Article 1. The government would foster “Religion, morality,
and knowledge” to create good republican citizens in the territories to support and protect
the union. The second principle concerned the government’s relationship with the Indians
of the territory. The second section of the article created an image of Congress as a
paternal protector of the Indians. The article stated:
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 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.
32
Congress alone would protect the rights of the Indians and their lands. Congress would
pass “laws founded in justice and humanity” to ensure the well-being of the Indians.
However, the inclusion of the statement “they shall never be invaded or disturbed, unless
in just and lawful wars authorized by Congress” belied a darker side to the relationship
between Congress and the Indians. Congressional protection had limits. Docile Indian
tribes received protection from Congress. Those that created problems for the territorial
government would be set outside of Congress’s favor and face war with the union. There
were no treaties to define what a “just and lawful” war entailed. Congress alone would
decide if a war was just.
32
Yale, “Northwest Ordinance”.
100
Article 4 restated the principles listed in the previous ordinances of 1784 and
1785. This was important since the 1787 ordinance voided the previous ordinances. The
new states would be members of the union, subject to the Articles of Confederation, and
be responsible for a share of the federal debt. Congress again banned the new states from
taxing or interfering with Congress’s disposal of federal lands within each state. The
restatement of these principles highlighted the nature of the new ordinance. The
ordinance of 1787 was not an elaboration of the previous ordinances but a refutation.
According to Peter Onuf, “the new ordinance represented a radical departure from its
predecessor, equivalent to the suppression of the Articles of Confederation by the Federal
Constitution.”
33
The drafters of the 1787 ordinance restated the republican principles of
the territories because the new ordinance was the only valid document that oversaw the
territories.
There was one addition to the principles previously stated in the 1784 ordinance.
Article 4 declared that the waterways of the territories were open for all traffic and free of
state control. This passage expanded the primacy of the union over the states and
highlighted the relationship among the various states and with Congress described in the
ordinance. The passage stated:
The navigable waters leading into the Mississippi and St. Lawrence, and
the carrying places between the same, shall be common highways and
forever free, as well to the inhabitants of the said territory as to the citizens
of the United States, and those of any other States that may be admitted
into the confederacy, without any tax, impost, or duty therefor.
34
33
Onuf, “Origins”, 168.
34
Yale, “Northwest Ordinance”.
101
As historian Robert Hill wrote, “The Northwest Ordinance, like the Articles of Confederation
and the U.S. Constitution, gives rights and imposes obligations by voluntary but inviolable
agreement.”
35
Congress created a process for state formation that resulted in an expanded union
with equally sovereign states. However, Congress also defined the limits of state authority and
placed the power of the union on equal, if not superior terms with the states. Congress assumed
control of navigable waterways and would administer them for the good of the union.
Article 5 described the size and location of future states in the territory. Congress
mapped out three states in the territory with a possibility of two more on the periphery.
The future states of Ohio, Indiana, and Illinois had their boundaries laid out by Congress
in the ordinance. By laying out the boundaries of the states, Congress avoided any
jurisdictional issues or border disputes between the newly formed territories. The people
of each new territory would immediately be part of a political community with which
they could associate.
36
Congress gave itself the authority to add additional states and
adjust states boundaries in the following passage:
Provided, however, and it is further understood and declared, that the
boundaries of these three States shall be subject so far to be altered, that, if
Congress shall hereafter find it expedient, they shall have authority to
form one or two States in that part of the said territory which lies north of
an east and west line drawn through the southerly bend or extreme of Lake
Michigan.
37
The mention of a possible state on Lake Michigan was contentious for decades after the
ordinance passed. Statehood proponents for Michigan maintained a border dispute over
35
Hill, 49.
36
Onuf, “Statehood”, 91.
37
Yale, “Northwest Ordinance”.
102
the proposed southern boundary of the new state. It was not until 1836 that Congress
allowed Michigan to join the union when state leaders dropped their claim.
38
The article ended by stating the conditions for achieving statehood. Several
phrases reveal the maturity and confidence of Congress by 1787. New states “shall be
admitted, by its delegates, into the Congress of the United States, on an equal footing
with the original States in all respects whatever.” The conditional entry of state delegates
as nonvoting members previously defined in the ordinance of 1784 was gone. Also
missing from the article was the requirement that new states adopt a constitution from an
existing state. New states were “at liberty to form a permanent constitution and State
government: Provided, the constitution and government so to be formed, shall be
republican, and in conformity to the principles contained in these articles; and, so far as it
can be consistent with the general interest of the confederacy.” The passages did not
suggest a growing sense of confidence by Congress in the settlers of the territories and
their ability to form republican institutions. Instead, they showed a growing sense of self-
confidence within Congress itself. The closing passage of Article 5 read:
And, whenever any of the said States shall have sixty thousand free
inhabitants therein, such State shall be admitted, by its delegates, into the
Congress 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: Provided, the constitution and
government so to be formed, shall be republican, and in conformity to the
principles contained in these articles; and, so far as it can be consistent
with the general interest of the confederacy, such admission shall be
allowed at an earlier period, and when there may be a less number of free
inhabitants in the State than sixty thousand.
39
38
Onuf, “Statehood”, xvii, 85-86.
39
Yale, “Northwest Ordinance”.
103
Congressional leaders were confident of their authority, the statehood process, and
Congress’ protection of the union. New states would be republican state by assenting to
the articles of compact within the ordinance.
40
A final passage within Article 5 reinforced the idea of a confident Congress
controlling the expansion of the union. The article included the requirement that a
territory have sixty thousand “free inhabitants” before applying for statehood. However,
the article closed by seemed to contradicting this requirement. The closing passage read:
so far as it can be consistent with the general interest of the confederacy,
such admission shall be allowed at an earlier period, and when there may
be a less number of free inhabitants in the State than sixty thousand.
41
What may seem contradictory actually reflected the growing sense of power within
Congress. Congress designed the statehood process beginning in 1784 with strict
requirements to protect the union. By 1787, Congress could adjust the requirements, or
ignore some of them in the interests of the union. Congressional leaders felt confident
enough in their authority to allow territories to “skip ahead” and become states if they
were sufficiently republican.
The final article in the ordinance was the most revealing evidence of
Congressional sovereignty. It was one of the shortest articles in the ordinance and only
addressed a single issue. It was also a near duplicate of the principle included in the 1784
ordinance drafted by Jefferson. Article 6 banned slavery in the Northwest Territory. It
read:
There shall be neither slavery nor involuntary servitude in the said
territory, otherwise than in the punishment of crimes whereof the party
40
Yale, “Northwest Ordinance”; Hill, 49.
41
Yale, “Northwest Ordinance”.
104
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.
42
Delegate Nathan Dane proposed the article late in the debate over the drafting of the
ordinance.
43
The article, listed last, was another statement of republican principles for the
new states. Thomas Jefferson explained the reasoning behind the contention that slavery was not
compatible with republican theory. In his Notes on the State of Virginia written in 1781-2, and
published in 1785, Jefferson wrote, “The whole commerce between master and slave is a
perpetual exercise of the most boisterous passions, the most unremitting despotism on the one
part, and degrading submissions on the other.”
44
Slavery degraded the concept of natural rights
for all men and threatened republican states as surely as hereditary titles. Legal distinction
between humans was an anathema to republican societies.
45
Article 6 framed the argument over slavery during the westward expansion of the
union. Slavery advocates believed the ban was a means to an end, not an end in itself.
The goal of the ordinance was promote the growth of the population and economy of the
new states. The ban on slavery was temporary until such times as it made economic sense
for the well-being of the state and its citizens to employ slaves. Anti-slave advocates
professed a link between generations from the time of the founders to the present. Each
generation had a responsibility to previous generations to maintain the principles and
42
Yale, “Northwest Ordinance”.
43
Onuf, “Statehood”, 110.
44
Thomas Jefferson, Notes on the State of Virginia, ed. William Peden, (Chapel Hill: University
of North Carolina Press, 1982), 162.
45
Hill, 51.
105
ideals set down by the founders.
46
Congress included a nod to the original states and their
employment of slaves. The final sentence was a fugitive slave law that directly protected
a slave owner’s property, but also indirectly protected the institution of slavery in the
union.
The Northwestern Ordinance of 1787 reflected the fully developed sense of
sovereign power in Congress. State- making, expanding the union, and banning slavery in
the territories reflected congressional leaders’ sense of authority – not just over the
territories, but over the established states, as well. In 1787, Congress was an imperial
ruler in exercising control over various populations. Western settlers were colonial
subjects until trained as republican citizens. Native American tribes were “protected” by
Congress as long as they remained docile. Even the established states had to accept that a
sovereign Congress was guiding the union and they must take it seriously as a political
authority. Congress, in the 1787 ordinance, created a pathway for controlled, republican
expansion of the union. The various parties, which sought to exploit the western lands,
had to deal with Congress as the sovereign of the territories. By 1787, Congress
possessed a clear understanding of the power, the limits, but mostly, the usefulness of
imperial sovereignty in expanding a union. Congressional leaders adopted the British
Empire’s concept of imperial rule and modified it to support a republican union.
46
Onuf, “Statehood”, 130-2.
Conclusion
Britain’s victory over France and Spain in the Seven Years War left it in possession of
vast swaths of North America. Parliament used this opportunity to assert more control over
colonies that extended from the Hudson Bay in Canada to the Caribbean Sea. The imperial model
employed by Britain involved a centralized, powerful Parliament that ruled the empire and based
its decisions on what its members perceived to be best for Britain. Colonies, or what some
scholars refer to as “periphery”, would serve England, the metropolitan center. As the war ended,
imperial administrators sought to assert order and control over the colonies.
1
The Royal Proclamation of 1763 highlighted Britain’s imperial philosophy. Colonies
won from France and Spain became royal colonies with court-appointed governors in full control
of the political development of each new colony. British leaders claimed possession of open lands
to add to established colonies. It also extended Britain’s dominium and imperium over the Native
Americans to the west of the Appalachian Mountains. Great Britain became a powerful, imperial
sovereign that controlled all aspects of life in its colonies and the people within its domain. A
critical component of the proclamation banned settlers from the western lands beyond the
Appalachians. British leaders forbade settlements in the west to protect Native Americans and to
avoid an Indian war the empire could ill afford. The ban resulted in vocal protests in America.
Numerous colonists ignored it and settled in lands that British policy makers reserved for Native
Americans. However, the proclamation established a precedent of centralized, imperial control
over lands and peoples regardless of any supposed rights possessed by settlers, Indians, or British
subjects. The Royal Proclamation of 1763 documented how a confident, imperial sovereign ruled
an empire.
1
For a full discussion of the concept of periphery versus center in Britain’s relationship with the
American colonies, see Jack P. Greene: Peripheries and Center: Constitutional Development in the
Extended Polities of the British Empire and the United States, 1607 – 1788. Athens (GA): The University
of Georgia Press, 1986.
107
Americans protested the 1763 proclamation and subsequent British acts in the 1760s and
early 1770s that attempted to centralize political authority. Authors from James Otis and John
Adams, to Thomas Jefferson and James Wilson wrote essays that asserted, first, the constitutional
rights of Americans as citizens of the British Empire, and second, their natural rights as humans.
These authors, and many others like them, employed the natural rights arguments of John Locke,
Jean-Jacque Rousseau, and other Enlightenment philosophes to defend American’s rights to self-
government. They argued that British leaders were the radicals who swept aside decades of
precedence in local rule to deprive Americans of their natural rights. By the middle of the 1770s,
American’s republican arguments led to the declaring of independence by thirteen of the
mainland colonies. American leaders defended their actions by portraying Britain as an imperial
giant bent on reducing colonists to slavery by removing their right to self-government.
Almost immediately after declaring independence, the Continental Congress began to
debate how to solidify state borders, to settle land disputes between the states, and to expand the
union to the west across the Ohio River. The Articles of Confederation, drafted in 1776 and 1777,
and ratified in 1781, did not give Congress sufficient authority to act on its own concerning the
creation of new states. Article IX of the Articles gave Congress the authority to adjudicate land
disputes between the states. The inclusion of this authority highlights the states’ desire for a
centralized authority to protect states’ borders. During the remainder of the 1770s, Congress
grappled with several attempts to move beyond this limited authority to include creating new
states and settling cession movements within states that seemed to be on the verge of splitting
apart. State jealousies over the control of contested lands and a distrust of congressional authority
limited Congress’s ability to expand its authority.
In 1780, Congress garnered enough support from the states to pass the Resolution of
1780. This document detailed Congress’s plans to create a national domain for the expansion of
the union. According to the resolution, Congress would control lands ceded by the various states
to the United States, for the good of the union. The congressional policy that emerged in this
108
document is striking for its similarities with the Royal Proclamation of 1763. Congress, in 1780,
passed a resolution that employed the same imperial sovereignty as that of Great Britain in 1763.
Congressional leaders set aside the republican theories employed by American colonists in the
1770s to protest Parliament’s actions. Congress discovered the usefulness – indeed - the need for
centralized, imperial sovereignty when dealing with western lands and people. Republican theory
was too uncontrollable, too haphazard, too threatening to the union to provide a reliable basis for
development in the west.
Congress passed three ordinances in the 1780s to further expand and define its role in
developing the west. In 1784, 1785, and in 1787, Congress continued to develop and mature its
concept of imperial sovereignty in the west. The 1784 ordinance established principles for
developing the west that included Congressional oversight of the creation of governmental
structures in the territories. The 1785 ordinance set down rules for surveying the territories,
establishing townships, and selling lands. It also further clarified the control of Congress through
the congressionally appointed governors and officials. Finally, in the Northwest Ordinance of
1787, Congress defined a constitution of sorts for the western territories and future states. The
1787 Ordinance defined the relationship between Congress and each new state, but also
demarcated the relationship between the settlers and their state government. The articles in the
Northwest ordinance read like a bill of rights for the people. This ordinance replaced the first two
and left no doubt as to Congress’s absolute authority in creating new states and controlling their
development. In the resolution of 1780 and subsequent ordinances, Congress placed all western
settlers, Native Americans, and foreign powers on notice that it would determine the form of
government, the values of land, the composition of the towns, and the speed of development in
the western territories.
The actions of Congress to assert imperial sovereignty raise several issues concerning
American constitutional theory and federalism. The first issue concerns the application of
republican theory in establishing or expanding a union. By the time that Congress declared
109
independence in July 1776, a committee was already working on what would become the Articles
of Confederation. The thirteen states chose to move as quickly as possible from the imperial
sovereignty of the British Empire to a union of states that, among other things, guaranteed the
states’ borders. The states surrendered their right to treat with other countries and declare war.
The states also gave Congress the right to adjudicate any disagreements between the states. In
essence, the states preferred to be in a republican empire or possibly an empire of republics.
American leaders believed that a centralized government with some nationalistic powers was
required to protect the states. In essence, American leaders wanted to duplicate the British
imperial model of government. In the late 1770s and the 1780s, Congress extended this concept
to expanding the union. Republican theory about self-rule was unfit for purpose to enlarge a
union. The settlers were not to be trusted to do the right thing by creating republican institutions
and joining the union on Congress’s terms. Republican theory was a powerful weapon in a
revolution. However, it was a poor theory for managing a fledgling union.
If republican theory was inadequate to maintain a union of states, it’s opposite,
centralized, imperial sovereignty promised to be more effective. Congressional leaders sought
more national authority for Congress during the War for Independence. Even before state land
cessions were completed, Congress began developing what would become the policy of an
imperial center controlling colonial outposts in the Northwest Territories. Congress hesitated at
first, and took tentative steps towards imperial rule, but by 1787, the Northwest Ordinance turned
the settlers of the Ohio region into subjects. American citizens - temporarily stripped of their
citizenship as they crossed the Ohio River, would regain it, as colonies became territories and
finally, states. Article Six in the Northwest Ordinance that bans slavery in the territories, reflects
the sovereignty of Congress. Even as territories became states, the language of the ordinance
suggested they could not choose to allow slavery within their borders.
The banning of slavery in the territories highlights what seemed to be an inconsistency in
Congress’s logic. Congress’s imperial sovereignty was temporary. As noted before, Section 13 in
110
the Northwest Ordinance stated that once a territory gained the approval of Congress and the
original states to become a new state, it would join the union “on an equal footing with the
original States.” However, if that were true, then Congress could not ban slavery in the new
states. Any new state had the right to allow slavery just as the original states maintained the same
right. When Congress surrendered its imperial sovereignty over a new state, that state was equal
to all others and possessed the same sovereignty as the other states. Slavery was a state issue, not
a congressional issue.
The legal conundrum over slavery in the new states was part of a far larger issue
concerning state sovereignty and federalism. Simply put, there was no definition or explanation
of state sovereignty in America’s founding documents or Founders’ letters. No legal or
constitutional theorist ever described state sovereignty as a theory of political authority.
Moreover, the term abruptly disappears with the drafting of the Constitution. As law professor
Timothy Zick wrote, “
Unlike the Articles of Confederation, which expressly reserved the
‘sovereignty’ of the states, the Constitution does not even mention ‘sovereignty.’”
2
Professor Zick goes on to describe three potential theories that legal scholars advance for
American sovereignty. The “Classicist Theory” supports sovereignty as absolute and
exclusive authority. The “Republican Theory” supports the concept that the people are
the only sovereign in American political theory. The third, “Skeptic Theory” states that
sovereignty makes no constitutional sense and is only a rhetorical device.
3
If these three
categories are accepted, then Madison’s usage of the phrase “state sovereignty” in the
2
Timothy Zick, "Are the State Sovereign?", Washington University Law Quarterly 83, no. 1
(January 2005): 232, Accessed February 20, 2014. http://scholarship.law.wm.edu/facpubs/275.
3
Zick, 233-4.
111
Federalist Essays was merely a rhetorical devise that carried no constitutional or
theoretical foundation.
The Constitution, instead of amending the Articles of Confederation, rendered
them moot as the convention drafted a constitution to “form a more perfect union”. The
Constitution invalidated the union formed under the Articles. The ratification process did
not require a unanimous vote but only the approval of nine states. Any that rejected it
remained outside the new union. As the late historian Kenneth Stampp wrote, “By these
acts, the Philadelphia Convention made the historical argument for [a perpetual union] invalid,
because the Convention and the ratifying states destroyed the existing Union.” The importance of
this theory in a discussion of sovereignty is crucial to understanding the role of the states. The
Constitution invalidated the Articles of Confederation, the only document that specifically
identified state sovereignty, as a political force. The Constitution formed a new union that did not
recognize state sovereignty.
4
Alexander Hamilton and James Madison resurrected the concept of state
sovereignty in the Federalist Essays. Hamilton argued in Federalist #9 that the states were
part of the national sovereignty by appointing senators. Hamilton returned to the issue of
sovereignty in Federalist #15 when he applied the revolutionary argument of imperio in
imperium and asserted that it was illogical to have multiple sovereigns. Madison took up
the sovereignty argument in Federalists #19 and 20. He saw the weaknesses in the
Articles of Confederation as one of a lack of national authority to hold the union together.
It was only after Anti-federalist attacks began to damage the Federalist argument that
Madison changed his position. In Federalist #39 Madison wrote, “Each state in ratifying
4
Kenneth M. Stampp, “The Concept of a Perpetual Union,” The Journal of American History,
Vol. 65, No. 1 (Jun., 1978), 7. Accessed February 21, 2014. http://scholarship.law.wm.edu/facpubs/275.
112
the constitution, is considered as a sovereign body independent of all others, and only to
be bound by its own voluntary act. In this relation then the new constitution will, if
established, be a federal and not a national constitution.” However, Madison digressed
from his national/federal government theory in Federalist #40. He refuted his previous
statements about a strong central government as well as the loss of state sovereignty
when he wrote, “Do they require that in the establishment of the constitution, the states
should be regarded as distinct and independent sovereigns? They are so regarded in the
constitution proposed.” There was no such statement in the Constitution. It was only with
the ratification of the eleventh amendment in 1794 that the Constitution established state
sovereignty in judicial procedures. Congress and the states quickly ratified this
amendment after the Supreme Court declared that the states did not enjoy sovereign
immunity.
5
The very creation of states from the thirteen colonies is problematic for state
sovereignty. In late 1775, pressure mounted on colonial governments to legitimize their
authority. There were no royal governors to sanction the actions of local assemblies. Each
colony needed legal authority to raise troops, collect taxes, institute government
administrations, and to develop and support judiciaries. The congressional debate over
reconstituting provisional governments centered on several issues. Creating republican
governmental institutions in each colony would enhance the power of each government
and make prosecuting the war against Great Britain more efficient. Also, it would, in
reality, make each state a subordinate administrative agency of Congress. A second issue
5
Alexander Hamilton, James Madison, and John Jay. The Federalist. Edited by J. R. Pole.
Indianapolis: Hackett Pub Co, 2005; The case mentioned was Chisholm v. Georgia (1793) where the Court
ruled that citizens of one state could sue another state for damages and that states were not sovereigns.
113
in the debate was the fear that newly republican states would change state leadership and
upset the working relations between Congress and the states. A third issue was that by
rejecting colonial charters and drafting new constitutions, Americans would in effect, be
declaring independence. This was something many congressional delegates did not
support in the winter of 1775-76. The details of the debate over drafting new state
constitutions are outside the purview of this essay. What is important is that the debate
took place at all. Congress was the forum for debating new charters for the states. In
November of 1775, New Hampshire and South Carolina received congressional
authorization to create new governments. This implies that Congress authorized the
colonies to become states. The colonies did not act independently to create republican
polities. Congress authorized the changes in state governments. State sovereignty, even
before the Declaration of Independence, does not appear substantiated by the evidence.
6
Further research into state making in the 1770s and the relationship between the
Continental Congress and the states could clarify the role of sovereignty as a political theory in
the American Revolution, its application in the Constitution, and its role in federalism. This task
is fraught with difficulty as various American documents either refer obliquely to the
independence of the states (the Declaration), the sovereignty of the states (the Articles of
Confederation), or do not refer to sovereignty at all (the Constitution). This task is complicated by
the almost careless application of the term “sovereignty” without a definition throughout the
period by various writers.
Congress envisioned a centralized, national government before the colonies declared their
independence. The Northwestern Territory gave congressional leaders the opportunity to expand
the role of Congress and allowed it to assume the role of an imperial sovereign. This affected the
6
Rakove, Beginnings, 81-3.
114
relationship between Congress and the original states, which displayed itself in the drafting and
ratification of the Constitution. The ordinances of the 1780s, which culminated in the Northwest
Ordinance of 1787, laid the foundation for American federalism. Congress was a confident
imperial sovereign with a sense of its own authority by the summer of 1787 when the
constitutional convention met in Philadelphia.
115
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