Today in 1787: Congress passes the Northwest Ordinance

July 13, 2012

Today in Legal HistoryHere’s a question for you:

What important law – largely responsible for shaping the nation as we know it today – was passed by the U.S. Congress before the U.S. Constitution was even drafted?

I suppose I should add, “…besides the Declaration of Independence.”

Want a hint?

This little piece of legislation led to the eventual creation of the states of Ohio, Indiana, Illinois, Michigan, and Wisconsin (and partly to Minnesota’s).

That law is the Northwest Ordinance, which was passed by the Congress of the Confederation of the United States 225 years ago today, on July 13, 1787.

As mentioned above, the Ordinance helped establish the states of Ohio, Indiana, Illinois, Michigan, Wisconsin, and (in part), Minnesota.

This wasn’t because of a land purchase, though.

Instead, the Northwest Ordinance established a set of rules and regulations to apply to the unsettled lands that eventually became the aforementioned states (thereafter known as the Northwest Territory).

Before getting too much into the Ordinance’s subsequent developments, though, it would be helpful to understand the developments that led to the passing of the law to begin with.

The Northwest Territory was gained by Britain from France after the French and Indian War ended in 1763, and the British closed the territory off to new settlement later that same year.

The territory was gained by the United States after the American Revolutionary War, but there were still some issues with the lands.

Namely, several adjoining states (Massachusetts, Connecticut, New York, and Virginia) claimed parts of the territory as their own.

NW TerritoryAs incentive for the states to drop their claims, the U.S. government opened up the land to new settlers (who were chomping at the bit for the opportunity).

However, since the territory wasn’t a part of any existing state, and federal law was sorely lacking (as mentioned above, the Constitution hadn’t even been written yet), some new rules had to be laid out.

The Northwest Ordinance lays out these new rules.

The Ordinance, specifically, included the following provisions:

  • Inheritance and intestacy laws;
  • establishment of territorial government; and
  • directives for the establishment and admission of new states (“not less than three nor more than five”);

The Ordinance also banned slavery within the territory (though it did not emancipate the slaves already held by settlers in the territory).

Ironically, though it contributed to the increased North-South tensions that led to the Civil War, the mandate was supported by the Southern states in Congress because they didn’t want new competition in the tobacco commodity crop.

Lastly, and perhaps most significantly to us lawyer types, the Northwest Ordinance established protections for several individual rights:

  • Protection of religious practices;
  • “no cruel or unusual punishments;”
  • prohibitions against deprivation of liberty or property without due process of law
  • “the writ of habeas corpus, and…the trial by jury;”
  • “a proportionate representation of the people in the legislature;” and
  • “judicial proceedings according to the course of the common law.”

We may not think much of the fact that these rights were specially enshrined in the Ordinance.

However, given the fact that the Bill of Rights hadn’t even been drafted yet, the inclusion of these provisions was groundbreaking.

Perhaps even more groundbreaking, though, was that these provisions served as the basis for the corresponding amendments in the Constitution.

Thus, though the Ordinance’s role in geographically developing the nation is certainly important, its role in acting as a prototype of the Bill of Rights so highly valued even today may be even more important.