The Least Known of America’s Founding Documents – The Northwest Ordinance of 1787

By Craig W. Rhyne, adapted from Session 6 of FreedomCivics®

The Northwest Ordinance was adopted by the Confederation Congress (under the Articles of Confederation) just two months before the adoption of the U.S. Constitution, by a vote of 17 to 1.  This little-known organic law was key to the founding of the United States of America. The most important contributions to the United States were (1) establishing a system of courts and government for the Northwest Territory; (2) an orderly way to add states to the union; (3) guarantee of the freedom of contract and private property rights; (4) outlawing slavery in the Northwest Territory that would eventually become five states; and (5) addressing the abuse of Native Americans and properly paying them for their properties.

The four organic (founding) laws of the United States are closely linked. They all advanced the cause of freedom and natural rights. This is because many of the Founders who signed the Declaration of Independence also participated in the Revolutionary War. And many of them wrote, voted for, or signed the Declaration of Independence, Articles of Confederation, the Northwest Ordinance, or the Constitution. The Northwest Ordinance of 1787 is the least known of the Founding Documents, but it played a major role in American history and the advance of freedom.

Under the Articles of Confederation, Congress enacted ordinances in 1784, 1785, and 1787 that established the framework for the expansion of the United States in the regions north and west of the Ohio River. The Land Ordinance of 1784, written by Thomas Jefferson, set up a court system for a territorial government, but it was replaced in 1785 and further revised. The resulting Northwest Ordinance of 1787 established how public lands would be sold to private interests and provided for new states. 

Rufus King and Nathan Dane, Massachusetts Delegates to the Confederation Congress, wrote the Northwest Ordinance of 1787. Rufus King was also a delegate to the Constitutional Convention that same summer.

The Northwest Territory

The 1783 Treaty of Paris marked the official end of the hard-fought Revolutionary War and brought peace between Great Britain and the new United States of America. The treaty granted the Northwest Territory to the victorious Americans.

People today might confuse the Northwest Territory with the Northwest Territories in Canada or the Pacific Northwest. But in 1783, the Northwest Territory was in the area we now call the “Midwest.” It was bordered on the west by the upper Mississippi River, on the east by Pennsylvania, on the south and southwest by the Ohio River, and on the north by the Great Lakes and Canada.

Westward Expansion and States’ Land Claims

As settlers moved west past the borders of the original states, the governments of Connecticut, Massachusetts, Virginia, New York, North Carolina, South Carolina, and Georgia sought to add more land to their states.

Under the Articles of Confederation, on July 13, 1787, the Confederation Congress passed the Northwest Ordinance of 1787. The Northwest Ordinance was the greatest accomplishment of the new nation under the Articles of  Confederation. The ordinance barred existing states from extending their borders, which ended the land claims disputes and provided for the orderly growth of the nation.

The ordinance also established the federal government’s authority over the states. Congress (not the states) was granted the right to govern the Northwest Territory and set the rules for how new states would enter the Confederation (later the federal union). Congress, too, had the right to divide the Northwest Territory into three to five smaller territories, which would eventually become states. 

By offering free land, the ordinance encouraged settlers to move to the new territory. When 5,000 free men moved to one of the divisions, they gained the right to self-government. When the population reached 60,000 free inhabitants, they would be entitled to draft their own republican government and constitution and petition Congress for statehood. The new state would be admitted to the union “on an equal footing with the original states.” This process established a legal precedent for how new states would be added to the union.

Eventually, the states of Ohio, Indiana, Illinois, Michigan, Wisconsin, and a part of Minnesota entered the union from the Northwest Territory. They were granted full equality with the thirteen original states.

A key aspect of the Northwest Ordinance was the establishment of fee simple ownership, by which a person could purchase land and own it in perpetuity with unlimited power to sell it, give it away, or leave it to his or her children.  This has been called “the first guarantee of freedom of contract in the United States.”  

In 1789, the newly ratified U.S. Constitution established a stronger federal government. Congress reaffirmed its support of the Northwest Ordinance of 1787 with slight changes under the new Constitution. President George Washington signed the ordinance in 1789. The  ordinance was to “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.” In other words, the ordinance was not ordinary legislation that Congress could amend.

The Advance of Freedom and Natural Rights

The Northwest Ordinance, also known as the “Freedom Ordinance,” echoed the call for liberty in the Declaration of Independence and legally affirmed the natural rights of all people in the Northwest Territory. Among these rights were freedom of religion; freedom from oppressive government; rights of those accused of a crime, including trial by jury; protection of private property; and rights of contract and inheritance. These rights were later included in the Constitution and the Bill of Rights.

Education based on “religion, morality, and knowledge” was encouraged in the Northwest Ordinance because they are “necessary to good government and the happiness of mankind.” Land was set aside in each township for schools. Eventually, this led to federal funding to develop a public school system in the territory. (See Section 14, Article 3.) 

By passing the Northwest Ordinance, the Founders made their first attempt to stop the spread of slavery by federal law. Article 6, the most famous article, provided that “there shall never be slavery nor involuntary servitude in the said territory” and any new states in the Northwest Territory joining the union. Rufus King and Nathan Dane, the two authors of the Northwest Ordinance of 1787, strongly opposed slavery. Their words highlighted the thinking of most of the Founders, which is why the ordinance passed 17 to 1. This ordinance created a natural dividing line between free and slave states at the Ohio River. (See Section 14, Article 6.)

When Abraham Lincoln was running for U.S. president, he mentioned the Northwest Ordinance as evidence that the federal government could regulate slavery. During a speech in Indianapolis, Indiana, in 1859, Lincoln indicated that President Washington and other Founders approved banning slavery in the Northwest Territory with these words:  

There was nothing said in the Constitution relative to the spread of slavery in the Territories, but the same generation of men said something about it in this [Northwest] ordinance of [17]87, through the influence of which you of Indiana, and your neighbors in Ohio, Illinois, Wisconsin, and Michigan, are prosperous, free men. . . . Our fathers [Founders] who made the government, made the ordinance of 1787.

Founders’ Attempts to Abolish Slavery and Abuse of Indians

Though the Founders could not unite all thirteen states to fight the War of Independence and simultaneously eliminate slavery, they resolved to stop its spread into territories and new states. They succeeded in preventing slavery in the Northwest Territory by passing the Northwest Ordinance of 1787, Section 14, Article 6. 

Slavery was tolerated in America until the Civil War, yet racial discrimination continued, including the abuse of Native Americans, then known as “Indians.” Recognizing their mistreatment, including disrespecting tribal land rights, the Founders addressed Indian property, rights, and liberty in the Northwest Ordinance    (Section 14, Article 3):

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.

Unfortunately, the Founders’ good intentions did not stop the federal government from taking Indian lands, forcing them to move from their homes to live on reservations, and discriminating against them in courts, jails, employment, and voting rights. As settlers and the U.S. military moved westward, Indians often (and understandably) fiercely resisted. Both sides fought in self-defense and also committed atrocities.

In the early Americas, diseases were rampant without modern vaccinations against smallpox, measles, diphtheria, typhus, and the like. All races suffered and died from them. Indians were particularly susceptible to the diseases because they had no natural immunity. Death estimates range up to tens of millions resulting from disease brought by infected European explorers and  settlers and African slaves.

As of January 2022, the federal Bureau of Indian Affairs (BIA) has recognized 574 sovereign tribal nations. The BIA (formerly the Office of Indian Affairs) was created in 1824 to address health concerns and many other issues. A quarter of the four to five million Native Americans and Alaska Natives live on 326 federally protected Indian reservations. Occupying more than 56 million acres of land, the reservations are held in trust by the United States for the tribes. While the reservation system has encouraged the preservation of Native American community, culture, and history, many sociologists have noted that the lack of private property on reservations has caused them a host of problems such as low rates of economic development and poverty.

Over time, the culture of freedom and recognition that all Americans must be treated equally under the law resulted in outlawing slavery (Amendment XIII) and many laws to correct abuse of Native Americans. These laws include Cherokee Indians being recognized as U.S. citizens in 1817; the first Civil Rights Act of 1866; adoption of the Constitutional Amendment XIV in 1868; the Indian Citizenship Act in 1924; the Civil Rights Act of 1964; the Voting Rights Act of 1965; the Indian Civil Rights Act of 1968; the Alaska Native Claims Settlement Act of 1971; and the American Indian Religious Freedom Act of 1978.

While the list of abuses and discrimination among all races is long, there have always been positive relationships as well. From the founding of the colonies to the present, cooperation, friendship, and intermarriage have occurred among Indians, blacks, and whites. Important historical examples include Squanto’s assisting the Pilgrims to survive; Pocahontas’s saving Captain John Smith’s life and her marriage to John Rolfe; and Sacajawea’s guiding the Lewis and Clark Expedition. In the Revolutionary War and all U.S wars since, Native Americans, blacks, and whites have fought together for the cause of freedom. Today, three-fourths of Native Americans live within American society. Many whites have traces of Native American ancestry. Substantial progress in racial acceptance and rights for all has occurred.

We must always seek virtue, and we must do good to all people. President Abraham Lincoln, in his first inaugural address in 1861, challenged all Americans with these words: 

We must not be enemies. Though passion may have strained, it must not break our bonds of affection. The mystic chords of memory, stretching from every battlefield and patriot grave to every living heart and hearthstone all over this broad land, will yet swell the chorus of the Union, when touched again, as surely they will be, by the better angels of our nature.

© 2022 Freedom Education Foundation, Inc.

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