74. The Western Lands and the Ordinance of 1784

As the Revolutionary War drew to a close, the settlement of the sovereignty over the lands of the Northwest became even more important. At the beginning of 1781, Virginia had ceded the lands north of the Ohio River to the Continental Congress, and Maryland was then persuaded to drop her objections to the Articles of Confederation. But the problem of the western lands was far from over, for Virginia had agreed to cession only if Congress voided the claims of the land speculators influencing middle states opinion. The speculative Indiana, Illinois and Wabash land companies fought back, urging Congress to refuse cession on those terms. The companies’ powerful lobbyists included James Wilson, Benjamin Franklin, Samuel Wharton (Congressman from Delaware), and Bernard Gratz.

With the Virginians battling the land speculators, a lengthy stalemate developed in Congress. The western domain, however, looked attractive to Congress as a means of raising revenue by selling parcels of land; furthermore, it had promised land bounties to veteran officers, and these could only be extracted from the western lands. Congressional favor began to shift toward cession and against the land companies. Finally, a committee of Congress which included such pro-Virginians as John Rutledge and James Madison reported in early June 1783, implicitly accepting Virginia demands. Maryland and New Jersey delegates objected strenuously but were overruled. Virginia’s cession was then finally accepted in mid-September and Virginia reaffirmed the cession of Northwest claims on modified terms at the end of the year, but had to be content with a tacit rather than an explicit acceptance of her proviso. The following March 1, Congress officially ratified the confirmed Virginia cession, with only New Jersey (and presumably Maryland, if she had been represented in the chamber at the time) voting nay. New Jersey, it may be noted, had come so thoroughly under the spell of the land companies that George Morgan, agent of the Indiana Company, had also been appointed agent of the state by the New Jersey legislature.

The terms of Virginia’s cession had not only worked to void the claims of the land speculators; they also pledged Congress eventually to carve several states out of the new territory, each to have the same rights as other states to “sovereignty, freedom, and independence.” This provision was embodied in the Ordinance of 1784, adopted in late April and drafted and steered through Congress by Jefferson. This ordinance laid down the pattern for future American land policy, especially in the carving out of separate states. While the public domain was unfortunately nationalized and the settlers subjected to the domination of Congress, Virginia’s proviso made sure that the new territories would eventually govern themselves, and not remain as permanent subjects of the original eastern states. But that tutelage period of congressional domination was long enough to make the Civil War inevitable—for it meant that the governing of new areas would have to be decided by a Congress which might contain within it irreconcilable sectional or ideological conflicts. Nationalizing the public domain meant also the nationalizing—the maximizing—of conflicts over its political and social systems. The broad impact of the Ordinance of 1784, furthermore, was heightened by the fact that it applied not only to the Northwest lands but also to any other lands that might be ceded to Congress by the individual states, a reflection of Jefferson’s anticipating Virginia’s ceding of the Kentucky lands into a separate state.

The specific form of government for all new territories under the ordinance was to create temporary territorial self-governments, followed by the formation of permanent states. Both would be subject to the Articles of Confederation. They would not be allowed to secede from the United States, they would be responsible for their share of the public debt, and they would be republican in form. Jefferson tried manfully to include the requirement that the western territories create no hereditary titles, nor allow any slaves or indentured servants after 1800. Given national control over western territories, only one proviso would have been consistent with liberty and justice and would have avoided the Civil War from the very beginning: Jefferson’s plan for the early outlawing of slavery. Only nipping the slave question in the bud might have prevented the vast conflict and bloodshed that was to come. But the slavery proviso—which significantly applied to Southwest as well as Northwest lands—lost by a single vote: only six states agreed out of thirteen. The four New England states, New York, and Pennsylvania voted for the prohibition; but the illness of New Jersey’s John Beatty deprived the proviso of the seven affirmative votes required. The opposition to the slavery proviso was led by Richard Dobbs Spaight of North Carolina and Jacob Read of South Carolina. All of this points up the growing sectional North-South division over slavery in the United States, a division that had begun years before around the controversy over the basis of apportioning tax requisitions under the Articles. In the 1784 vote, the northern states were lined up against slavery, and the southern—with the exception of a few liberals such as Jefferson and his young Virginian disciple James Monroe—in favor.*

*In the controversy concerning the impost proposed by Congress in April 1783, the northern states had won a victory by projecting a change in the basis of requisitioning under the Articles. Instead of the value of ground land and improvements, the basis was proposed to be population—but this time a concession was made to the South in that only three-fifths of the slaves would be counted. This again points up the growing sectional disputes based upon slavery.

Following the work of Max Farrand at the beginning of the twentieth century, historians have, until very recently, almost completely deprecated the important role of sectional and slavery conflicts during the 1780s. For an analysis of this error, see Staughton Lynd, “The Abolitionist Critique of the United States Constitution,” in Martin Duberman, ed., The Anti-Slarery Vanguard (Princeton: Princeton University Press, 1965), pp. 209–239. On the Ordinance of 1784, see ibid., pp. 221ff.