Gerald R. Ford Leadership Forum

The Northwest Ordinance of 1787

The Northwest Ordinance was enacted on July 13, 1787, 236 years ago. To accompany today’s essay, below are pertinent sections from The Northwest Ordinance.

Section 1 is basically boilerplate, but section 2 starts off in a very interesting way:

Be it ordained by the authority aforesaid, That the estates, both of resident and nonresident proprietors in the said territory, dying intestate, shall descent to, and be distributed among their children, and the descendants of a deceased child, in equal parts; the descendants of a deceased child or grandchild to take the share of their deceased parent in equal parts among them: And where there shall be no children or descendants, then in equal parts to the next of kin in equal degree; and among collaterals, the children of a deceased brother or sister of the intestate shall have, in equal parts among them, their deceased parents' share; and there shall in no case be a distinction between kindred of the whole and half blood; saving, in all cases, to the widow of the intestate her third part of the real estate for life, and one third part of the personal estate; and this law relative to descents and dower, shall remain in full force until altered by the legislature of the district.

This language may strike modern ears as odd. Why begin an ordinance with laws of inheritance? I think Tocqueville gives us the answer in Democracy in America:

In virtue of the law of partible inheritance, the death of every proprietor brings about a kind of revolution in property; not only do his possessions change hands, but their very nature is altered, since they are parcelled into shares, which become smaller and smaller at each division. This is the direct and, as it were, the physical effect of the law. It follows, then, that in countries where equality of inheritance is established by law, property, and especially landed property, must have a tendency to perpetual diminution. The effects, however, of such legislation would only be perceptible after a lapse of time, if the law was abandoned to its own working; for supposing the family to consist of two children (and in a country people as France is the average number is not above three), these children, sharing amongst them the fortune of both parents, would not be poorer than their father or mother.

According to Tocqueville, this rule was essential in establishing social and legal equality in America. He has much to say about the effects of the law, the details about which we need not plumb here, but his comments bristle with his typical insight. Three effects worth mentioning are how the law destroys paternal authority and filial affection, how it unleashes tremendous energy into the social body, and how it encourages a love of money (land no longer being the main conveyor of wealth). Since Americans would not inherit as much landed wealth as they would have back in Europe, they would come to value education, vocation, and the free market in which to make their fortune.

Sections 3-12 of the Northwest Ordinance deal with the logistics of governing. Section 13 introduces this important idea:

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…

This too, may strike modern ears strangely, but the assumption that religion was essential to good order was commonplace in those days; and to keep religion from becoming itself despotic religious liberty could not be dispensed with.

Section 13 also stipulates that “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.” It is virtually impossible to hold together a free social order without recognizing the authority of contracts, as they are mechanisms by which free individuals bind their wills to one another. Where contracts are not sacrosanct, chaos soon follows. Likewise, the writers were typical of the age in believing that property rights were fundamental to a free society. A lot can be said about this, but even those who complain about property rights have locks on their doors and deeds to their houses.

The we get to Section 14, one of the most important parts of the Ordinance. Articles 1 and 2 are a template for what would later become the Bill of Rights. Article 3 provides a more explicit development of Section 13, and also regulates relationships with native tribes:

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.

But the Ordinance does not simply forbid maltreatment of native tribes:

There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes whereof the party 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. 

After defining the boundaries to be governed by the ordinance, it takes up the knotty problem of the admission of new states.

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.

The ordinance’s approach to state admission was considered at the Constitutional Convention, which decided instead to leave the question in the hands of a majority in Congress, a decision that would prove near fatal about 70 years later.

Discussion Questions:

  1. Has reading the Northwest Ordinance changed your understanding of the American Founding? How?
  2. Most of us would embrace the first part of Article 6 (on slavery), but balk at the second part. Why did the authors feel it was necessary?
  3. Why would the Ordinance stress the importance of religion and education, but the Constitution be silent about them?

Photo courtesy of the National Archives. Read the full Northwest Ordinance of 1787 here.


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