A Patriot's History of the United States: From Columbus's Great Discovery to the War on Terror (23 page)

North of the Ohio, a slower pace of settlement took place because of strong Indian resistance. Even there, the white presence grew. Marietta, Ohio, became the first permanent American settlement in the region, but soon was joined by Chillicothe, Fort Wayne, and Detroit. Census figures in 1790 showed the non-Indian population at 73,000 Kentuckians and 35,000 Tennesseans, while the Old Northwest (Ohio, Indiana, Illinois, Michigan, and Wisconsin) boasted 5,000, with numbers rising daily. Counting the pre-1790 residents, the combined American population in all areas between the Appalachian crest and the Mississippi River numbered an impressive 250,000. As one traveler later observed:

 

Old America seems to be breaking up, and moving westward. We are seldom out of sight, as we travel on this grand track towards the Ohio, of family groups, behind and before us…. Add to these numerous stages loaded to the utmost, and the innumerable travelers on horseback, on foot, and in light wagons, and you have before you a scene of bustle and business extending over three hundred miles, which is truly wonderful.
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On the eastern seaboard, the Confederation Congress watched the Great Migration with interest and concern. Nearly everyone agreed that Congress would have to create a national domain, devise a method for surveying and selling public lands, formulate an Indian policy, and engage in diplomatic negotiations with the British and Spanish in the Old Northwest and Southwest. Most important, Congress had to devise some form of territorial government plan to establish the rule of law in the trans-Appalachian West. Nearly everyone agreed these measures were necessary, but that was about all they agreed to.

Western lands commanded much of Congress’s attention because of the lingering problem of national domain.
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The Articles remained unratified because some of the landed states still refused to surrender their sea-to-sea claims to the central government, and Maryland refused to ratify the document until they did. This logjam cleared in 1781, when Virginia finally ceded her western claims to Congress. Maryland immediately ratified the Articles, officially making the document, at long last, the first Constitution of the United States. Although one state, Georgia, continued to claim its western lands, the remaining states chose to ignore the problem.

Congress immediately set to work on territorial policy, creating legal precedents that the nation follows to this day. Legislators saw the ramifications of their actions with remarkably clear eyes. They dealt with a huge question: if Congress, like the British Parliament before it, established colonies in the West, would they be subservient to the new American mother country or independent? Although the British model was not illogical, Congress rejected it, making the United States the first nation to allow for gradual democratization of its colonial empire.
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As chair of Congress’s territorial government committee, Thomas Jefferson played a major role in the drafting of the Ordinance of 1784. Jefferson proposed to divide the trans-Appalachian West into sixteen new states, all of which would eventually enter the Union on an equal footing with the thirteen original states. Ever the scientist, Jefferson arranged his new states on a neat grid of latitudinal and longitudinal boundaries and gave them fanciful—classical, patriotic, and Indian—names: Cherroneseus, Metropotamia, Saratoga, Assenisipia, and Sylvania. He directed that the Appalachian Mountains should forever divide the slave from the free states, institutionalizing “free soil” on the western frontier. Although this radical idea did not pass in 1784, it combined with territorial self-governance and equality and became the foundation of the Northwest Ordinance of 1787.

Jefferson also applied his social liberalism and scientific method to a land policy component of the Ordinance of 1784. He called for use of a grid system in the survey of public lands. Moreover, Jefferson aimed to use the national domain to immediately place free or, at least, cheap land in the hands of actual settlers, not the national government. His and David Howell’s land policy proposal reflected their agrarianism and acknowledgment of widespread de facto “preemption” (squatter’s rights) on the American frontier that was later codified into law. As economist Hernando DeSoto has argued in
The Mystery of Capital
, the American “preemption” process gave common people a means to get a legal title to land, which was an early basis for capital formation. This kind of liberal—and legal—land policy is not present in 90 percent of the world even to this day.
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By 1785, however, Jefferson had left Congress, and nationalists were looking to public lands sales as a source for much-needed revenue. A Congressional committee chaired by nationalist Massachusetts delegate Rufus King began to revise Jefferson’s proposal. Borrowing the basic policies of northeastern colonial expansion, Congress overlaid the New England township system on the national map. Surveyors were to plot the West into thousands of townships, each containing thirty-six 640–acre sections. Setting aside one section of each township for local school funding, Congress aimed to auction off townships at a rate of two dollars per acre, with no credit offered. Legislators hoped to raise quick revenue in this fashion because only entrepreneurs could afford the minimum purchase, but the system broke down as squatters, speculators, and other wily frontiersmen avoided the provisions and snapped up land faster than the government could survey it. Despite these limitations, the 1785 law set the stage for American land policy, charting a path toward cheap land (scientifically surveyed, with valid title) that would culminate in the Homestead Act of 1862. To this day, an airplane journey over the neatly surveyed, square-cornered townships of the American West proves the legacy of the Confederation Congress’s Land Ordinance of 1785.
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Moving to Indian policy in 1786, Congress set precedents that remain in place, the most important of which was the recognition of Indian “right of soil,” a right that could be removed only through military conquest or bona fide purchase. No one pretended that this policy intended that the laws would favor the Indians, and certainly Congress had no pro-Indian faction at the time. Rather, nationalist leaders wanted an orderly and, if possible, peaceful settlement of the West, which could only be accomplished if the lands obtained by Indians came with unimpeachable title deeds.

Congress then appointed Indian commissioners to sign treaties with the Iroquois, Ohio Valley, and southeastern “civilized” tribes. Treaty sessions soon followed at Fort Stanwix, Hopewell, and other sites. Obviously, these agreements did not “solve the Indian problem” nor did they produce universal peaceful relations between the races. On the other hand, the Indian Ordinance of 1786 did formalize the legal basis of land dealings between whites and Indians. Most important, it established the two fundamental principles of American Indian policy: the sovereignty of the national government (versus the states) in orchestrating Native American affairs, and the right of soil, which also necessitated written contractual agreements. To reiterate the points made in earlier chapters, the concept that land could be divided and privately owned was foreign to some, though not all, tribes, making the latter principle extremely important if only for claims against the government that might arise generations later.
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Congress returned to the territorial government question in a 1787 revision of Jefferson’s Ordinance of 1784. Again, Rufus King, Nathan Dane, and the nationalists led the effort to stabilize westward expansion. The nationalist imprint in the Ordinances of 1786 and 1787 showed a marked difference from the point of view of agrarian Whigs like Jefferson and David Howell. Dane and King acknowledged the inevitability of westward expansion, but they preferred that it be slow, peaceful, and regulated by the government. Although not all their ideas were feasible, they nevertheless composed the basis of the American territorial system. Even in twenty-first-century America, when a territory becomes part of the American empire and, in some cases, seeks statehood (for example, Alaska, Hawaii, and perhaps someday Puerto Rico or the Virgin Islands), that territory’s governmental evolution is charted under the terms remarkably similar to those established by the Northwest Ordinance. Only a few states—Texas, an independent republic that never went through territorial status; West Virginia, which was admitted directly to the Union during the Civil War; and Hawaii, which was annexed—did not come into the Union in this process.

The Northwest Ordinance established a territorial government north of the Ohio River under a governor (former Continental Army general and staunch Federalist Arthur St. Clair was soon appointed) and judges whom the president chose with legislative approval. Upon reaching a population of five thousand, the landholding white male citizens could elect a legislature and a nonvoting congressional representative. Congress wrote a bill of rights into the Ordinance and stipulated, à la Jefferson’s 1784 proposal, that no slavery or involuntary servitude would be permitted north of the Ohio River.

Yet the slavery issue was not clear-cut, and residents themselves disagreed over the relevant clause, Article VI. William Henry Harrison, Indiana’s first territorial governor, mustered a territorial convention in Vincennes in 1802 for the purpose of suspending Article VI for ten years.
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Petitioners in Illinois also sought to “amend” the clause. It is easy to miss the enormity of the efforts to undercut the slavery prohibition in the Northwest, which became the basis for the popular sovereignty arguments of the 1850s and, indeed, for the infamous
Dred Scott
ruling of 1857. In a nutshell, the proslavery forces argued that the U.S. Congress had no authority over slaves in, say, Indiana—only the citizens of Indiana did. In that context, the Northwest Ordinance of 1787 put the issue of slavery on the front burner. More than that, it spoke directly to the divisive issue of state sovereignty, which, fortunately, the people of the Northwest Territory and the Congress decided in favor of the federal authority.
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The Ordinance produced other remarkable insights for the preservation of democracy in newly acquired areas. For example, it provided that between three and five new states could be organized from the region, thereby avoiding having either a giant super state or dozens of small states that would dominate the Congress. When any potential state achieved a population of sixty thousand, its citizens were to draft a constitution and apply to Congress for admission into the federal union. During the ensuing decades, Ohio, Indiana, Illinois, Michigan, and Wisconsin entered the Union under these terms. The territorial system did not always run smoothly, but it endured. The Southwest Ordinance of 1789 instituted a similar law for the Old Southwest, and Kentucky (1791) and Tennessee(1786) preceded Ohio into the Union.

But the central difference remained that Ohio, unlike the southern states, abolished slavery, and thus the Northwest Ordinance joined the Missouri Compromise of 1820 and the Compromise of 1850 as the first of the great watersheds in the raging debate over North American slavery. Little appreciated at the time was the moral tone and the inexorability forced on the nation by the ordinance. If slavery was wrong in the territories, was it not wrong everywhere? The relentless logic drove the South to adopt its states’ rights position after the drafting of the Constitution, but the direction was already in place. If slavery was morally right—as Southerners argued—it could not be prohibited in the territories, nor could it be prohibited anywhere else. Thus, from 1787 onward (though few recognized it at the time) the South was committed to the expansion of slavery, not merely its perpetuation where it existed at the time; and this was a
moral
imperative, not a political one.
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Popular notions that the Articles of Confederation Congress was a bankrupt do-nothing body that sat by helplessly as the nation slid into turmoil are thus clearly refuted by Congress’s creation of America’s first western policies legislating land sales, interaction with Indians, and territorial governments. Quite the contrary, Congress under the Articles was a legislature that compared favorably to other revolutionary machinery, such as England’s Long Parliament, the French radicals’ Reign of Terror, the Latin American republics of the early 1800s, and more recently, the “legislatures” of the Russian, Chinese, Cuban, and Vietnamese communists.
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Unlike those bodies, several of which slid into anarchy, the Confederation Congress boasted a strong record. After waging a successful war against Britain, and negotiating the Treaty of Paris, it produced a series of domestic acts that can only be viewed positively. The Congress also benefited from an economy rebuilding from wartime stresses, for which the Congress could claim little credit. Overall, though, the record of the Articles of Confederation Congress must be reevaluated upward, and perhaps significantly so.

Two Streams of Liberty

Well before the Revolutionary War ended, strong differences of opinion existed among the Whig patriots. While the majority favored the radical state constitutions, the Articles of Confederation, and legislative dominance, a minority viewpoint arose.
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Detractors of radical constitutionalism voiced a more moderate view, calling for increased governmental authority and more balance between the executive, judicial, and legislative branches at both the state and national levels. During this time, the radicals called themselves Federalists because the Articles of Confederation created the weak federal union they desired. Moderates labeled themselves nationalists, denoting their commitment to a stronger national state. These labels were temporary, and by 1787, the nationalists would be calling themselves Federalists and, in high irony, labeling their Federalist opponents Anti-Federalists.
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