A republic, not an empire

The other story of 1787

Read any textbook of American history, and by the time you get to the summer of 1787 all roads lead to the Philadelphia convention that wrote a new constitution for the United States. Along the way, and at the convention itself, the deficiencies of the existing constitution—the Articles of Confederation—are given full airing. 

But during that same summer that existing constitution did some marvelous work. The Congress of the Confederation met in New York and accomplished more for the American future than any single session of Congress before or after.

Since the first settlement of English colonies on the Atlantic seaboard, uncertainty had surrounded the geographic extent of the colonies. Their eastern boundary was the Atlantic, obviously. In time the northern and southern boundaries were worked out, as by the famous Mason-Dixon line separating Pennsylvania from Maryland. But the western boundaries were veiled by a fog of ignorance. 

Virginia, the first colony, was said to stretch as far as the Pacific Ocean. This was based on the Balboan delusion that North America wasn’t much wider than the isthmus Balboa had crossed in modern Panama. By the eighteenth century, geographers understood their predecessors’ mistake, and the Treaty of Paris ending the Revolutionary War set the western boundary of the United States at the Mississippi River. But that still left a lot of land to quarrel over.

And to govern. Settlers had been moving west almost from the moment of colonization, but once they crossed the Appalachian Mountains, starting in the 1760s, they entered a no man’s land without effective government. Several colonies claimed parts of the western region called Ohio, lying north and west of the Ohio River, but none put substance into its claims. Numerous Indian tribes lived in the region. Sometimes they ignored the settlers, sometimes traded with them, sometimes sold them land, sometimes fought them. But they couldn’t keep the intruders at bay or under control.

The Congress of the Confederation—the successor, upon the 1781 ratification of the Articles, of the Continental Congress—took multiple swipes at the issue of the western lands. An ordinance of 1784 authorized territorial governments for the region. Another, of 1785, ordered surveys on which land titles would be based.

But the heavy lifting awaited the summer of 1787. In July that year the Congress approved an ordinance that set the template for the future of the western lands. The big question was what would happen to the territorial governments when their territories filled up with people. Would they remain subordinate to Congress and hence to the thirteen original states?

The 1787 ordinance, often called the Northwest Ordinance, said no. They would form new states— “on an equal footing with the original states in all respects whatever.”

This was revolutionary. When other countries had expanded, they typically kept new territories in subservience to the mother country. Subservience was the essence of empire, and empires had formed the large agglomerations of territory in history. Indeed, subservience was the point of empire. The mother country could tax the new territories, seize their resources, conscript their soldiers. Britain’s insistence on American subservience was what had triggered the American Revolution.

This recent memory persuaded the members of the Confederation Congress to rule out anything similar for the United States. Their predecessors in the Continental Congress had created a republic, not an empire, and they weren’t going to undo that achievement.

The 1787 ordinance made this explicit. Each new state, it said,  “shall be at liberty to form a permanent constitution and state government, provided the constitution and government so to be formed shall be republican.”

The ordinance decreed particular attributes of American republicanism. “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; and of judicial proceedings according to the course of the common law.” Further: “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.”

Most hopefully, the ordinance ruled on slavery, by ruling it out. “There shall be neither slavery nor involuntary servitude in the said territory.” This provision reflected a predominant view among American leaders at the time. Most, including many slaveholders, regretted that British imperial law had saddled America with slavery. They couldn't rewrite the past, and politics compelled them to leave the question of slavery to the individual states. But they could write a new future for the territories controlled by America's national government. The future they wrote forbade slavery.

As suggested above, the doings of the convention at Philadelphia in the summer of 1787 made bigger news than the actions of the Congress in New York. But events of the next two and a half centuries were powerfully shaped by the congressional ordinance of that summer. Its central provision ensured that America became a continental republic rather than an empire headquartered on the Atlantic. Within a few generations the new states outnumbered the original thirteen demographically, outweighed them politically, and outproduced them economically. The west was the birthplace of American democracy, and it gave America its first great democratic presidents, Jackson and Lincoln.

The legacy of the ban on slavery was more ambiguous. While the ordinance made free states out of the territories north of the Ohio, south of the river a booming cotton culture spawned one slave state after another. With the admission of Missouri in 1821, slavery leapfrogged the Mississippi. 

Yet Missouri's admission was part of a compromise that was supposed to preserve the free-north spirit of the 1787 ordinance. It did just that for another three decades, until Congress repealed the compromise and then the Supreme Court declared it unconstitutional.

Several sons of the ordinance saved the Union after slavery blew it apart. Lincoln of Illinois ran the politics of the war for the north, while Ohioans Grant, Sherman and Sheridan headed the fight on the battlefield. Beyond this, the encouragement the ordinance gave to settlement in the north assured the Union the weight to crush the Confederacy.

The central principle of the 1787 ordinance survived the Civil War, carrying republicanism beyond the Arctic Circle and halfway across the Pacific Ocean. Pretty good work for an overlooked session of a fading congress.