Dred Scott (Wikimedia Commons)
If you remember and/or have flashbacks to high school history, you may remember the Northwest Ordinance. My own rusty recollection tells me that I learned the Ordinance established the system of land survey and the framework for territorial organization that would see use for the remainder of the march of white Americans across a continent and all the people who already lived there. If you live in a part of the country governed by it or its many descendants, you can probably drive out of town and navigate by a fairly regular grid of roads that owe much to the law. But mainly, the Northwest Ordinance banned slavery everywhere it reached. Thus it established a precedent for future bans on slavery in the Louisiana Purchase and Pacific Northwest. When Dred Scott sued for his freedom, he did it based on his lengthy residence in two jurisdictions where that slavery ban operated: Illinois and Minnesota. A large part of Minnesota did not originally fall in the Northwest Territory, nor even the United States at the time of passage, but legally Minnesota Territory originates in Wisconsin Territory. Wisconsin sits entirely within the Old Northwest and inherited its slavery ban through a few previous territorial enactments that go back to the Ordinance.
Thus we learn in school that the Founders, those great and good men, set slavery on a path to ultimate extinction. Antislavery Americans believed the same thing, from less ideological politicians like Abraham Lincoln to leading ideologists like Salmon P. Chase. An entire tradition of antislavery constitutionalism flows from the words
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
Restrictions on slavery’s expansion, all the way up to the Wilmot Proviso, use that language. It meant a great deal to people in the nineteenth century and as we, at least officially, declare our sympathy with those same people we carry on their position. It becomes for us, just as it did for them, a usable past. We can rest assured that our nation really did have its conception in liberty and something simply went awry sometime between 1787 and 1860.
Seeking comfort in history may make us human, but doesn’t necessarily make us good historians. What if we have it wrong? Antislavery Americans took the Northwest Ordinance as a precedent and it absolutely functioned as one down the road, but what did it look like in the 1780s? What might its slavery ban have meant to the men who voted for it? And how well did it function? Looking at these questions makes for a far more complicated picture.
We must begin with the ignoble birth of the slavery article. It came into the bill as an afterthought, at the last moment, and passed without debate. If you read the full law, you will find it replete with references to free inhabitants. For that distinction to have meaning, it must mean that the law contemplates the presence of unfree inhabitants: slaves. The law’s authors didn’t see fit to revise it to remove them, but rather voted the slavery ban through without debate that might have shed some light on their understanding of the issue. Thanks, guys.
We can say that the Northwest Ordinance protects the property and inheritance laws of the French inhabitants of the region. They owned slaves and would pass them on by inheritance. Does the property rights provision or the antislavery provision take precedence? The Confederation Congress may not have known that these people had slaves at the time, but when they and eventually the federal government confronted that issue the slavery ban collapsed into a weak ban on importing new slaves to the territory. It freed no one, but rather as a practical matter protected slavery to the degree it already existed in the territory. Nor, perhaps, should we expect otherwise of a law that could win the united votes of the southern states.
Salmon P. Chase
The point of precedent still matters, but already we have a very qualified precedent that exists more retrospectively and in form than function. We must indict the Northwest Ordinance further, also on the grounds of precedent. These words immediately follow the slavery ban:
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.
The Northwest Ordinance predates the Constitution. Thus here, for the very first time, we have a fugitive slave clause. This grants to the slave states a power they had previously lacked. Until the ratification of the Constitution, a slave who dared steal his or her body and made it across a state line might have just won permanent freedom. No provision existed under the Articles of Confederation for the recovery of fugitive slaves. When the Constitution introduced that power, it became a sticking point for anti-federalists in Massachusetts. If we grant at the Ordinance set an antislavery precedent in principle, we must also grant that it set a proslavery one in practice. Here, for the first time, slavery attains the kind of extra-territorial status which it will have down through the antebellum.
That may well have sweetened the pot enough to keep the South on board with the Ordinance, but the antislavery features of the law found frustration in another way still. The Ordinance did not grant any clear authority to any body to enforce its antislavery ban. You could sue in the courts, petition the government, or act through the legislature to protect property, but only the extremely dubious and generally inaccessible courts remained open for a person enslaved in defiance of the law. I don’t know that any enslaved person tried them when it mattered, but their prospects with a jury or courts established by a constituency that kept asking Congress to repeal the limited exclusion of slavery that did function in the territory can’t have looked good. The Indians had more avenues to defend their rights.
We must also look at what the Ordinance did not do. It did not cover the whole of the west, as a previously proposed version had. By excluding slavery from a marginal region, the South could have understood the ban as cutting off competition for slaves and in tobacco and hemp. No such ban existed in the Southwest Territory, which soon became Tennessee. Nor would any come in the lands to the south of it. Partitioning the west and surrendering the least appealing part of it might well have looked like a bargain to ensure slavery elsewhere, particularly as southerners proved more energetic in westward expansion during the very early republic. Kentucky and Tennessee both gain statehood in the eighteenth century, a distinction shared in the North only by Vermont.
This leaves us with a Northwest Ordinance that served as an important legal and rhetorical touchstone for the antislavery movement, fair enough. But the facts on the ground on either side of the Ohio or the Appalachians don’t really support an unqualified assertion that it set the nation on a path toward abolition. Rather, looked at in detail and in context, the Northwest Ordinance appears more like the other kind of precedent: an ambiguous law that does little to restrict slavery in practice while trying harder to reinforce and defend it. We might call it the first proslavery-tilting antebellum compromise as easily as the first antislavery law.