Willson – A Good Government, Well Administered

John Willson
Hillsdale College
A Good Government, Well Administered

The Philadelphia Society
Regional Meeting in Pittsburgh
October 14, 2006

We
just missed the thirteenth annual Whiskey Rebellion Festival down in the little
town of Berlin (pop. 2192) in the Laurel Highlands.
I’m not sure if they tar-and-feather local officials and refuse to pay
taxes for a week, or even if they sample local legal and illegal spirits, but it
sounds like your better-than-average local festival.

Speaking of the Whiskey Rebellion (1791-94): We might look at it as the
last violent gasp of a thirty-years’ war that began with the Stamp Act
Rebellion (1765). Just as that
colony-wide rebellion shocked the British into more and more repressive attempts
to centralize the Empire, so Shays’s Rebellion (1786) “gave powerful
stimulus” toward the convening of the Constitutional Convention of 1787.
The Whiskey Rebellion, put down easily but rather ruthlessly by President
Washington, rounded out Hamilton’s program to establish internal taxes.
Once Hamilton got his Bank and his national tax structure, as they say,
all the rest is history.

This isn’t by any means the whole story of American Independence.
But tax rebellions were important, and even a quick reading of the
documents shows that the Shaysites and the Whiskey rebels thought they were
doing the same thing in 1786 and 1794 that they had been asked to do in 1776.
Furthermore, the tax problems between the Empire and the colonies as a
whole tended to transfer into the colonies as a major part of east-west
tensions. During this thirty-year
tax war ethnic factors also played an important part, nowhere more explicitly
than in Pennsylvania, where much of the frontier was populated by wild Scotsmen
and other Celtic peoples, the so-called Scotch-Irish who dominated almost the
entire Appalachian highlands by the 1760s.

And although the great republican documents were usually written in
Philadelphia or New York or Boston, it was often around Pittsburgh that their
ambiguities began to pop out like political sores.
“Nation-building” (a term that would have no meaning to most of our
ancestors), we could argue, began at the confluence of the Allegheny and
Monongahela Rivers. It is also
nicely symbolic for our purposes that the former flows in from a part of New
York that was in the 1790s rapidly being settled by New Englanders who were
displacing the great people of the Longhouse, the Iroquois; and the latter from
Virginia, which had long had claims and designs on the great valley of “La
Belle Riviere.” George
Washington, in fact, had a personal stake in a strong national settlement of the
Whiskey Rebellion: it would
increase the value of his western lands by a substantial amount.
And it did.

The picture is even bigger, however.
Just as Pittsburgh in the early 1760s stood at a critical strategic point
between the French and the British in the Great War for Empire, in the 1790s
Pittsburgh faced westward at the great struggle for a continent.
We don’t often remind ourselves that the United States is
the only nation that began its independent
existence as an empire. That
is, after 1783 we had land west of the Appalachians that amounted to a greater
territory than that governed by the original thirteen states.
It was almost entirely unorganized.
What Americans did with that empire would quite literally determine the
character of their new republic. So,
this is a good spot to be standing, thinking about whether the American
Independence, writ large, was a departure from or fulfillment of, the British
legacy.

[Generally speaking, on such questions I’m a fulfillment guy; if
“creed or culture” is the way you put it, then I’m a culture guy;
“nation or notion” I go for nation. I
stand, I think, in a line of great and distinguished members of this Society
which includes Russell Kirk, Forrest McDonald, and M. Stanton Evans (behind
them, for sure). But like them
I’m not an ideologue, and so wonder at the mysteries and the unpredictable
twists and turns of our national story.]

There. I’ve now taken two
pages to get to the first paragraph.

Arthur St. Clair (one of a very special gang: Our Lost Founders) was
President of the Congress of the United States when it passed “An Ordinance
for the government of the territory of the United States northwest of the river
Ohio” on July 13, 1787. Note that
this was the Articles of Confederation
Congress. After the
ratification of the Constitution in 1789, the first Congress elevated the
Northwest Ordinance to the status of the “Organic Law of the United States,”
along with the Declaration of Independence, the Articles of Confederation, and
the Constitution. By that time St.
Clair was out in the Northwest Territory, having left Congress to take the job
as its Governor. He would serve as
the only governor of the whole territory, fired by Secretary of State James
Madison in 1802 for, among other things opposing Ohio’s (illegal) application
for statehood. St. Clair was thus a
rare thing, even among the Founders: a Lawgiver and chief executor of Organic
Law.

The Scottish-born St. Clair was also from western Pennsylvania.
He came to America as a British Regular during the Great War for Empire,
and stayed on after the peace, helped out by a whopping dowry that came with his
wife Phoebe, a daughter of Boston aristocracy.
He moved to the Ligonier Valley on the Pennsylvania frontier, drawn by
abundant cheap land and the presence of so many of his countrymen in these
rugged hills. He was a
developer-pioneer of Westmoreland and Bedford counties, a magistrate, colonel of
militia, defender of Pittsburgh against Virginia aggression.
He joined the Continental Army in 1776 and rose to Major General.
He was with Washington at Princeton, Valley Forge, Brandywine, Yorktown,
and Newburgh. After the war he
returned home to straighten out his finances and ended up helping John Dickinson
and other Pennsylvania conservatives get rid of the state’s disastrous
experiment in democracy. He went
off to Congress, and to the Northwest Territory.

When
Washington took up the Presidency he and Henry Knox were delighted to find their
old comrade-in-arms in Cincinnati. [St. Clair had renamed the village with the
whimsical name, “Losantiville”, after the Society of the Cincinnati; he was
to have many other chances to name places after American and Roman heroes.]
They knew he was a good nationalist, a prudent man, one given to even
less attention to his personal fortunes than was expected of “public
servants” in those days. He was
expected to do in the Northwest Territory what he had done on the Pennsylvania
frontier. As he told the citizens
of Marietta in 1788, he hoped to find joy in “reducing the country from a
state of nature to a state of civilization.”

In the
Northwest Ordinance he had a formidable civilizing tool.
I’m willing to argue that it was the best law passed by any human
legislature in all of recorded history. It
was clear, true to the history and customs of the citizens it regulated, said
neither too much nor too little (an immense aid to administration), was capable
of enforcement, and outlined an astonishingly wise connection between organized
and unorganized territory that prevented a new republic from immediately
becoming an old empire.
This last characteristic we might call The Great Departure
from British legacy. And it’s a
big one!
All the rest was Fulfillment.

The
Ordinance, Congress said, gave “articles of compact, between the original
States, and the people and States in the said territory, and [shall] forever
remain unalterable.” It was meant
to create temporary government for colonial lands and a process through which
territories could become states equal in
every respect to the original states of the union.

It began with
a practical guarantee of the inviolability of private property and its orderly
transmission. Which rights come
first? This is as old as Magna
Carta, and putting it first was a measure of congressional prudence.

The Ordinance
then turns to colonial administration, making clear that sovereignty during this
transition was in the Congress of the United States.
A Governor; a secretary (maybe); three judgesóall appointed
by Congress. The Governor’s
powers during the transition were enormous.
He was almost a monarch in this “mixed government.”
He and the judges had full legislative power (although they had to pass
laws that were copies of laws in the original statesóno innovation here!) and
the power to administer the laws. He
was commander of militia. He had
appointive power over all civil magistrates.
He could divide up the territory into counties, townships and court
jurisdictions as he saw fit. He was
very much like a colonial governor in the early days of the British colonies,
which made many settlers nervous. But
St. Clair was also limited not only by his subservience to Congress but by the
fact that every office he could create, every political jurisdiction he could
carve out of the countryside, had to be one that came directly out of the
colonial or republican experience of the original states.
His innovative powers were nil.

That was all
right with St. Clair. He was
concerned with orderly settlement;
like most nationalists and developer pioneers he believed that the United States
already offered too many opportunities for freedom.
He was interested in duty. From
his point of view, the Ordinance was a conserving
law. It offered a process
whereby carefully developed colonies could become equal states in the Union, but
first it laid the institutional, legal and moral bases for that equality.

Articles I-IV
guaranteed all settlers “the rights of Americans,” almost all of which had
been “the rights of Englishmen” the colonials had demanded before 1776:
representation in government, religious liberty, a wide range of Common Law
rights; and included the remarkable statement, “Religion, morality, and
knowledge being necessary to good government and the happiness of mankind,
schools and the means of education shall forever be encouraged.”
St. Clair had the background to put these elements of liberty into place
because the states (and before that the colonies) had been doing it for nearly a
hundred years and because he had done similar things on the Pennsylvania
frontier even before the War for Independence.

Article V,
which outlined the formation of new states was ingenius (although never followed
strictly in practice) but contained the one stipulation that made the rest of
the law work: Congress retained the
authority to admit new states once they had submitted a constitution, and
those constitutions had to be republican.
When all was said and done, the United States guaranteed through this
remarkable law that they would clone themselves in the territories.
And because Article VI was added, banning slavery and involuntary
servitude (which southerners in the territory would attempt to reverse right up
to the Missouri Compromise), I would argue that the Ordinance was the best
and fullest legal statement of American liberty written during the generation of
the founders.

But in
addition to the intentionally conserving nature of the law itself, it was given
practical meaning by an equally traditional nationalist using institutions that
reached back deep into the colonial period and many cases hundreds of years back
into English history. I have time
to deal with only two examples: the township
and a system of courts based in the English
Common Law.

The Land
ordinance of 1785 had provided that the township was to be the basic unit of
local government in the territory. The
township was, of course, New England’s instrument of local government and,
fortunately for St. Clair, the northeast quadrant of what became Ohio was given
to Connecticut and Yankees in general were bursting at the New England seams to
get west by the early 1790s. They
knew how to run townships. To
Yankee pioneers there was little tension between liberty and order because they
had already solved it in a hundred and sixty years of colonial experience.
Read one town history in the Northwest Territory and you’ve read ëem
all: the laying out of villages, fair and careful distribution of land, building
of churches, schools, and academies, establishment of town meetings, elaborate
plans for the care of the poor, establishment of militias (including required
gun ownership) for self defense, encouragement of crafts and enterprise; it all
reads like a rehash of Timothy Dwight’s Travels
in New England and New York.

What strikes
one about law in the territory is how quickly and thoroughly it brought order to
a vast landscape (once, that is, the Indians were eliminated as a real military
threat; first in 1795, again in 1811). Stephen
Vincent Benet once wrote,

And
Thames and all the rivers of the kings

Ran
into the Mississippi and were drowned.

In fact, as one historian has put
it, the “Thames flowed into the muddy waters of the Mississippi and
transformed them, engulfed them, Anglicized them forever.”
The Common Law washed over the countryside.
Thousands of pioneer lawyers packed up their Blackstones and went west
and established orderly courts that gave would-be Judge Roy Beans scarcely a
moment for rough and tumble justice.

Lest we trust the word of an historian who has merely crawled through the
sub-basements of countless county courthouses from western New York to Michigan,
take a look at the courthouses themselves.
From the beginning they were testaments to the rule of law
and to its continuity. In the early
days they were often Greek revival or Romanesque.
They were always elaborate, well planned, full community effort symbols
of liberty under law. They were the
“Temples of the Republic.”

After being dismissed by the Jefferson administration Arthur St. Clair
returned to the Pittsburgh area and died in poverty in
1818. He had lost his entire
fortune in the service of the republic (book contracts for disgraced officials
were not as lucrative then) and his historical fortunes have not picked up much
in the 188 years since his death. The
Northwest Ordinance may have provided an even truer “founding” than the
nation’s; if that is correct then Arthur St. Clair was justified in having
said to the citizens of Marietta in 1788 that he looked forward to his work with
“a pleasure something like that attendant upon creation.” That his work was
more modest than the Creator’s would not have bothered him, for he knew what a
powerful mixture of creed and culture he had to work with.