Creating the Northwest Territory    

On the morning of March 1, 1781, as the Maryland delegates prepared to sign the Articles of Confederation and complete their ratification, Congress discussed Western lands.  The three New York delegates, on that very morning, signed an “instrument” limiting and restricting the boundaries of their state—but with troublesome stipulations attached.

Congress would spend much of the next eight years arguing about western land, and the resulting creation of the Northwest Territory (1787) would rank as one of the most enduring accomplishments of the Confederation.

Getting the Land--Cessions from the States

Is Illinois a part of Virginia, or New York?  The question sounds ridiculous today, but at the time of independence, both states claimed the land which later became Illinois.  Seven states, in fact, claimed land beyond the Allegheny Mountains which formed the effective limit of white settlement.  The claims were based on ambiguous and conflicting British colonial charters, and extended westward to the Mississippi River, beyond which all parties (except for the Indians who actually lived there) agreed that the land belonged to Spanish Louisiana.  The claims are shown on the map below. 

land claims

Virginia took its Western claim seriously enough to send George Rogers Clark, an officer in its state militia, hundreds of miles to seize British posts at Kaskaskia and Vincennes (now part of Illinois and Indiana respectively) during the Revolutionary War.

Should these claims be honored, or should the vast western lands be formed into federal territories?  The Articles of Confederation, as finalized in November 1777 (see Drafting the Articles), forbade Congress from depriving any state of any part of its territory.  This foreclosed Congress from claiming the Western lands for the national government by fiat.

But, there was nothing to prevent the states from ceding their claims to the nation on their own.  And, as the 1770’s wore on, the states were more and more disposed to do so, for several reasons.  First, as settlers began trickling over the mountains—provoking conflicts with the local Indians every step of the way—the practical problems (and expense) involved with asserting such vast claims became apparent.  Second, many of the states had boundary disputes with other states in the East, where settlers already lived (see State Boundary Disputes).  Abandoning tenuous Western claims offered good will which might redound to a state’s benefit in these more immediate eastern disputes.  And third, Maryland insisted on cession as the price of confederation.  The other states wanted confederation.

The New York legislature led the way, authorizing its Congressional delegates (February, 1780) to cede New York’s claims at such time, and with such reservations, as they might think appropriate.   This was the instrument the delegates presented to Congress on Confederation Day.  But, the delegates added a stipulation that Congress must guarantee New York’s remaining boundaries, which were under challenge from both Massachusetts and the would-be state of Vermont.

Connecticut followed with an offer of cession in October 1780—but only “in just proportion” as other states ceded their claims.  Connecticut also attached conditions as to how Congress was to dispose of the territory.

Finally, in January 1781, Virginia enacted its own cession—but attached no less than eight conditions.  One of them was that Congress must reimburse Virginia for the expenses of Clark’s campaign.  Another, most problematical, was that Congress must not honor any prior private land purchases or land grants within the ceded territory.  Land companies, influential in other states, wanted their grants recognized.

There, then, matters stood at the moment of Confederation.  New York, Connecticut, and Virginia had ceded their Western claims, but with strings attached.  Massachusetts, North and South Carolina, and Georgia stood by their claims.  Congress had not yet accepted any of the deeds of cession.

After long debate, a committee report, and several postponements, Congress finally voted to accept the New York cession on October 29, 1782.  The vote was 7 states in favor, one opposed, two divided, and three unrepresented.  This may seem like a substantial majority but was actually the minimum seven states necessary to approve any action under the Articles.  Congress failed to guarantee New York's remaining boundaries, but New York chose not to protest.

The Virginia cession occasioned even longer debate.  At long last, in September 1783, Congress agreed to most of the Virginia conditions (including reimbursement for Clark), but balked at voiding the land company grants, and refused to guarantee Virginia’s remaining territory.  Virginia accepted this compromise in October 1783, and Congress accepted the revised Virginia cession on March 1, 1784.  Seven states voted in favor with one opposed and one divided—again, the minimum required for passage.

This cleared the Northwest sufficiently for Congress to begin working on ordinances to govern the territory (see next section), although the claims of Massachusetts and Connecticut still had to be settled.  Massachusetts offered an unconditional cession in November 1784, which Congress accepted in April 1785.

Connecticut finally passed a new act of cession in May 1786, but attached the stiffest condition of all—it retained sovereignty over, and ownership of, a “western reserve” in what is now northeastern Ohio.  The reserve was a wedge of land 120 miles wide, between the 41st parallel and Lake Erie.  Despite this rider, Congress accepted the cession without a recorded vote on September 14, 1786.  Congress blithely ignored the Western Reserve in creating the Northwest Territory, which included it.  Connecticut sold the land, causing jurisdictional confusion not settled until 1802, long after the Articles had given way to the Constitution of the United States (COTUS).

South of Virginia, events moved more slowly.  North Carolina and Georgia had claims contiguous to their eastern population centers, which they might more realistically hope to exploit.  (South Carolina, for a time, also claimed a narrow strip of western land, but its claim was based on mistaken notions about its western boundary, and vanished into the ether when South Carolina and Georgia settled their boundary dispute in 1787.)  To make matters more complicated, Spain claimed much of the southern Mississippi Valley as part of Spanish Florida (see The Treaty That Wasn't).  

North Carolina refused to cede its claim until May 1784, after it had already sold a substantial amount of the land at issue.  Six months later, before Congress could even consider the cession, North Carolina revoked it.  The settlers in western North Carolina then took matters into their own hands, organizing a new state of Franklin (see The Race to Become the Fourteenth State) in what is now eastern Tennessee.  Georgia refused to make a cession throughout the 1780’s.  The western claims of North Carolina and Georgia would remain to be dealt with under the Constitution of 1787--as would the claims of Spain.

Sources: Journals of the Continental Congress, Volumes 17 through 26; Merrill Jensen, The Articles of Confederation, 1940; Merrill Jensen, The New Nation: A History of the United States During the Confederation, 1781-1789, 1968


Governing the Land—States or Territories?

Shall we settle in, on an autumn Saturday, to enjoy the football rivalry between Cherronesus and Metropotamia?  So we might, if Thomas Jefferson had had his way.

Once Congress had gained sovereignty over the land north and west of the Ohio, it had to decide how to sell it, and how to govern it.  As soon as Congress heard news of the Virginia cession, the members appointed a committee, led by Thomas Jefferson, to prepare a recommendation.  Jefferson, ever more attuned to politics than commerce, decided to address the issue of governance first.

The Articles of Confederation offered little guidance.  They did not authorize Congress to create a federal territory, and authorized the admittance of new states in only the most roundabout way.  Article XI: “Canada acceding to this confederation, and joining 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.”  This appeared to envision that an external “colony” such as Bermuda might apply for admission.

Necessity, nonetheless, is the mother of constitutional invention, and if colonies could be admitted as states, Jefferson was quite prepared to admit ceded land as states.  On the very day that Congress accepted the Virginia cession (March 1, 1784), Jefferson’s committee was ready with an ordinance detailing how to do so.

Jefferson proposed to divide the northwest into ten future states, and not only laid out their boundaries, but gave them polysyllabic names laden with historic and classical allusion.  They are shown on the map below.

Jefferson's states

Jefferson would not allow Congress to appoint territorial governments pending statehood.  That would be tyrannical.  Instead, the settlers would organize their own local governments, as yeomen gathering at town meetings and county conventions.  When the population of a future state reached 20,000, the settlers would hold a constitutional convention and elect a territorial government.  When the population reached that of the smallest of the original thirteen states (Delaware, in the 1790 census, had a population of 60,000), the territory would be admitted as a state.

Jefferson was of course a slave owner, but he recognized that slavery was incompatible with the society of small farmers that he wished to foster.  His ordinance banned slavery in any of the new lands, whether state or territory, after 1800.

Not all of Jefferson’s proposals survived Congressional scrutiny.  Congress dropped his state names as premature, and deleted the prohibition of slavery when only six states supported it.  (Unsurprisingly, all were in the north.)  Jefferson’s ordinance was accepted, minus these subtractions, on April 23, 1784.  It was an illusory victory.  The ordinance would be superseded before it was implemented. 

Sources: Journals of the Continental Congress, Volume 26; Merrill Jensen, The New Nation: A History of the United States During the Confederation, 1781-1789, 1968

Interlude: The Reanimation of the United States Army

Josiah Harmar

The assertion of federal sovereignty over the Northwest settled one matter on which Congress had been procrastinating—the United States would need to maintain an army.

The United States had had an army since June 14, 1775, when the Continental Congress created the Continental Army.  It had fought and won the Revolutionary War.  The Articles of Confederation formalized the powers of Congress over the Army.  Congress was responsible for “appointing all officers in the land forces of the United States, excepting regimental officers”, “making rules for the government and regulation of the said land . . . forces”, and “directing their operations”.  The states, however, would supervise the actual raising of troops, and appoint “all officers of or under the rank of colonel”.

Would these provisions retain any substance after the Revolutionary War?  With the coming of peace (1783), the Continental Army withered.  Congress directed the army to begin “furloughing” officers and men on May 26, 1783, pending formal discharge upon the ratification of a final peace treaty.  At first, the troops were reluctant to go home.  The government owed them back pay.  Grumbling soldiers mutinied in June 1783, and forced Congress to flee Philadelphia (see Where Was the National Capital?).  Eventually, however, the troops departed, mollified though not satisfied by paper vouchers for back pay which would be redeemed in the sweet bye and bye, when the government had money.  George Washington resigned as Commander in Chief in December 1783.  On June 2, 1784, Congress ordered the final demobilization, stripping the Army down to 80 men to “guard stores” at West Point and Fort Pitt at what is now Pittsburgh.

Had it not been for the Northwest, that might have been the end.  Many members of Congress felt standing (permanent) peacetime armies were nurseries of tyranny.  Delegate Elbridge Gerry (MA) described standing armies as “inconsistent with the principles of republican Governments, dangerous to the liberties of a free people, and generally converted into detestable destructive engines for establishing despotism”.  State militias, he felt, could provide peacetime defense.

And yet, there was the Northwest.  It would not be part of any state, and for some time to come, would not have a militia.  On June 3, 1784, Congress brought a reborn Army to life, requiring Pennsylvania, New York, New Jersey, and Connecticut to raise 700 men for “securing and protecting” the Northwest.  The motion carried, nine states to two.  Even Mr. Gerry voted in favor.

The new army would be commanded by a lieutenant colonel.  Since this officer would be below the rank of colonel, he would be appointed by a state.  Congress assigned the privilege to Pennsylvania.  Pennsylvania named Josiah Harmar (above left), a Revolutionary War veteran, to the post in August 1784.  Harmar assembled his recruits in Philadelphia, and moved to Fort Pitt in September.

In 1785, Harmar moved his troops into the Northwest.  Much of his work involved fighting Indians and protecting treaty parleys; see From Conquest to Purchase for the story of Indian policy under the Articles of Confederation.  His troops also protected federal surveyors (see below), evicted white squatters, and constructed forts along the territorial rivers, ranging as far as what is now Vincennes, Indiana.  In 1787 Congress raised Harmar to the rank of Brigadier General, and increased his army to 1,000 men.

Sources: Journals of the Continental Congress, Volumes 24 and 27; Alan S. Brown, The Role of the Army in Western Settlement: Josiah Harmar’s Command, Pennsylvania Magazine of History and Biography, April 1969; Thomas Fleming, The Perils of Peace: America’s Struggle for Survival After Yorktown, 2007.

Selling the Land

With governance out of the way—for the time being--and an army in business, Congress turned to the matter of surveying and selling the northwest.

One issue had faded over time—nobody any longer supported the claims of the prewar land companies.  The national government was deeply in debt, and the states were refusing to grant Congress the power to tax.  The northwest was a potentially enormous source of revenue.  Congress would sell it, and the prewar claimants were out of luck.

If Jefferson was ambitious in naming new states, he was manic in his plan for surveying the land (May 1784).  He attempted to change the length of the mile, extending it to 6,086.4 feet so that it would correspond to one minute of longitude at the Equator, or 1/21,600 of the circumference of the Earth.  He called this the “geometrical mile”.  “In the scheme for disposing of the soil,” Jefferson wrote, “an happy opportunity occurs for introducing into general use the geometrical mile in such a manner that it cannot possibly fail of forcing its way on the people . . . This is surely an age of innovation, and America the focus of it!”

Alas, Jefferson departed to serve as American ambassador to France, and was not in Congress to see his land ordinance to final passage.  His colleagues lacked his affinity for “innovation”, and watered down his ordinance to provide for townships of six square English miles, subdivided into 36 lots each.  Once sufficient townships had been surveyed, they would be divvied up and assigned to the “loan offices” (so called because they sold government bonds) within the several states, for sale to the public. Congress passed the land ordinance on May 20, 1785.

Thomas Hutchins, the Geographer (surveyor) of the United States, then assembled a crew, and took his chains and compass to the northwest to begin the survey.  He started at the point where the north shore of the Ohio River intersects the western boundary of Pennsylvania, on September 30, 1785.

Eight days later, he and his crew were driven off by Delaware Indians, who were understandably peeved at seeing white people preparing to sell their land.  But Hutchins returned with a larger crew, and military protection (see above), in 1786, and eventually managed to survey 35 townships.  He brought the plats to Congress in April 1787.

Congress then decided that the original plan of distributing sales among all 13 states was slow and impractical, and ordered a sale of all of the townships at public auction in New York to commence on September 21, 1787.   The minimum bid was $1 per acre, or $640 per square mile.

The sale ran from September 21 through October 9.  The federal land office in New York failed to do a land office business.  Some parcels attracted no bids; others attracted only one bid and went for sale at the minimum price.  Nevertheless, 148 parcels were sold for $176,000; of which buyers paid $87,000 in cash up front.  This was disappointing, but at least it was something.

With surveys and small scale sales taking time, and yielding paltry returns, land companies reentered the scene.  If Congress wanted money quickly—and it did—it would have to sell land in large tracts to wholesalers, who would buy at a bulk discount, and sell gradually at what they hoped (usually correctly) would be an increasing price.  Opponents derided land companies as vultures and speculators, and they were often corrupt, but they performed a valuable service in aggregating capital and assuming risk.

One such outfit, the Ohio Land Company, approached Congress in summer 1787 with an offer that Congress couldn’t refuse.  Congress authorized its Board of Treasury to negotiate with the Land Company, and the two sides signed a contract on October 21.  The OLC purchased 1.5 million acres in what is now Southern Ohio for $1 million, with half paid up front and half to be paid later.  To be sure, the OLC made the up-front payment in federal securities, which traded on the open market for a fraction of their value in specie.  Nevertheless, the sale reduced the national debt by $500,000 at a stroke.

Rufus Putnam, the guiding genius behind the Ohio Land Company, led the first group of settlers to Ohio the following spring, and they founded the town of Marietta.

Sources: Journals of the Continental Congress, Volumes 26 and 28; Andro Linklater, Measuring America: How the United States was Shaped by the Greatest Land Sale in History, 2002; Albion Dyer, First Ownership of Ohio Lands, 1911

Governing the Land, Part 2: Creating the Northwest Territory

With the northwest about to begin filling up, with buyers from both the New York auction and the Ohio Land Company, Congress looked anew at governance.  Thomas Jefferson, with his notion of self-governing yeomen, was still in France, and by 1787 Congress had had enough of weak government.  Congress took up the famous Northwest Ordinance of 1787, which scrapped the Ordinance of 1784 altogether and with it Jefferson’s ten future states.

NW TerritoryInstead, Congress created the first federal territory, formally styled "the Territory of the United States, North-West of the River Ohio", with a territorial governor to be appointed by Congress itself.  The governor would command the militia, promulgate a temporary law code, and appoint magistrates.  Congress would also elect a territorial court.  The citizenry would eventually be allowed to elect a legislature, but even then Congress would appoint the upper house.  In due time, the territory would form between three and five states.

Since settlers might fear an appointed government, Congress appended a bill of rights guaranteeing freedom of religion, habeas corpus, trial by jury, and due process.  Finally, Congress restored the prohibition of slavery, which had been deleted from the Ordinance of 1784, and even strengthened it by making it immediate instead of waiting until 1800.

Congress passed the Northwest Ordinance by 8 votes to zero on July 13, 1787.  Congress elected its own outgoing President, Arthur St. Clair, as the first territorial governor (October 5).  He assumed his duties at Marietta, Ohio on July 9, 1788.

checkerboard farmlandThe remainder of the story belongs to the Constitution of the United States (COTUS), but the foundation had been laid.  The COTUS armed Congress with explicit power to admit new states and “make all needful Rules and Regulations” for federal territories.  Congress under the COTUS repassed the Northwest Ordinance virtually unchanged in 1789.  It remained as the model for settling and governing new territory from the Mississippi River to the Pacific.

The government resumed its abandoned land survey in 1796.  Voters elected the first territorial legislature in 1798.  The process of admitting the land making up the Northwest Territory as states began in 1802 (Ohio) and was finally completed in 1858, with the admission of Minnesota.

Flying over the Midwest today, one still sees the checkerboard grid of townships and farms—the legacy of the Northwest Ordinance and the Articles of Confederation.

Sources: Journals of the Continental Congress, Volumes 32 and 33; Andro Linklater, Measuring America: How the United States was Shaped by the Greatest Land Sale in History, 2002

Nathan Dane and the Exclusion of Slavery


In 1835, Nathan Dane died.  Eulogists compared him to lawgivers of the ancient world, hailing him as “Lycurgus-like”, as a “new Moses”, and possessed of “a mighty intellect like the Sun of heaven”.

 What had Dane done?  He had acted as the principal author of the Northwest Ordinance, 48 years earlier, and especially of the clause banning slavery in the Northwest Territory.

Nathan Dane was born in Massachusetts in 1752.  He worked as a young man as a school teacher and lawyer, and was elected to the Massachusetts Legislature in 1782 and to the Confederation Congress in 1785.

Dane showed up regularly at Congress, and sought out committee work.  With Congressional attendance dwindling in 1787, these attributes earned Dane a modicum of leadership.  When Congress needed a committee to prepare the Northwest Ordinance in its final form, Dane was named to the Committee and did most of the writing. 

He didn’t say anything, in his first draft, about slavery.  He knew that Congress had rejected a ban on slavery in the Northwest in 1784, with not one southern state voting in favor.  But when the ordinance came before Congress as a whole, on July 12 or 13, Dane suddenly moved to add a sixth article banning slavery, and Congress acquiesced without a recorded vote.  The next week (July 16), Dane wrote:

When I drew the ordinance which passed (in a few words excepted) as I originally formed it, I had no idea the States would agree to the sixth Article prohibiting Slavery--as only Massachusetts of the Eastern States was present--and therefore omitted it in the draft--but finding the House favorably disposed on this subject, after we had completed the other parts I moved the article which was agreed to without opposition.

Why did the Southern states agree to what they had rejected three years earlier?  William Grayson of Virginia wrote that the clause “was agreed to by the Southern members for the purpose of preventing Tobacco & Indigo from being made on the N.W. side of the Ohio.”  In other words, Grayson wanted to protect Virginia planters from competition.  (He need not have worried.  The Midwest is too cold to grow indigo.)

Other delegates may have been influenced by the land companies, which averred that a ban on slavery would be popular with potential buyers, and thus enable Congress to sell more land and make money faster.

It’s difficult to over-estimate the long-term importance of the slavery ban, however haphazardly and opportunistically it was added to the Ordinance.  Over the following decades, territorial bans emerged as the primary Northern strategy for containing slavery.  As Abraham Lincoln put it, “we think it is wrong and ought to be restricted”.

And, as the North sought to restrict slavery, the South fought against such restrictions.  They blew them apart entirely in 1857, when Chief Justice Roger Taney, a Marylander, found that Congress had no power to ban slavery in any territory, anywhere.  The fact that the Confederation Congress, much weaker than Congress under the COTUS, had believed such a ban within its competence in 1787--without any controversy and without a single dissenting Southern vote—was a powerful rebuttal to his views.

What of Nathan Dane, who started the process in train?  He returned to Massachusetts and served again in the Legislature, but eventually had to retire from politics because he had gone deaf.  He retreated to the life of a scholar, writing treatises on American law which were much respected in the Nineteenth Century.

He was sadly forgotten in the years after his death.  His memory lives today, to the extent that it lives at all, mostly via Dane County in Wisconsin, home to the state capital and the University of Wisconsin.

Sources: Letters of Delegates to Congress, Volume 24; Peter Onuf, Statehood and Union: A History of the Northwest Ordinance, 1987; Jay Barrett, Evolution of the Ordinance of 1787, 1891; Jon Wakelyn, Birth of the Bill of Rights: Biographies, 2004


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