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.30 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.31
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.32
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.33
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.34 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.35
The nationalist faction included Robert Morris, Benjamin Franklin, John Adams, Henry Knox, Rufus King, and their leader, Alexander Hamilton. These men found much wanting at both the state and national levels of government. They wanted to broaden the taxation and commercial regulatory powers of the Confederation Congress, while simultaneously curtailing what they perceived as too much democracy at the state level. “America must clip the wings of a mad democracy,” wrote Henry Knox. John Adams, retreating from his 1776 radicalism, concurred: “There never was a democracy that did not commit suicide.”36 “The people!” Hamilton snorted. “The people is a great beast.”37
Yet it should not be assumed that this antidemocratic language was monarchical or anti-Revolutionary in nature, because Hamilton himself would also refer to “the majesty of the multitude.” Rather, the nationalist criticism reflected a belief in republicanism as a compromise before the tyranny of a monarch and what James Madison feared to be a potential “tyranny of the majority.” It was a philosophical stance dating back to Aristotle’s distinction between a polis (good government by the many) and a democracy (abusive government of the many). Nationalists concluded that the Spirit of ’76 had become too extreme.
At the state level, nationalists attacked the actions of all-powerful legislatures produced by expanded suffrage. They were also disturbed when seven states issued inflated currency and enacted legislation that required creditors to accept these notes (leading to scenes in which debtors literally chased fleeing creditors, attempting to “pay” them in spurious money). Additional “debtors’ laws” granted extensions to farmers who would have otherwise lost their property through default during the postwar recession. Reaction to the state-generated inflation is explainable in part by the composition of the nationalists, many of whom were themselves creditors in
one way or another. But an underlying concern for contractual agreements also influenced the nationalists, who saw state meddling in favor of debtors as a potentially debilitating violation of property rights.38
When it came to government under the Articles, nationalists aimed their sharpest jabs at the unstable leadership caused by term limits and annual elections. A role existed for a strong executive and permanent judiciary, they contended, especially when it came to commercial issues. The Confederation’s economic policy, like those of the states, had stifled the nation’s enterprise, a point they hoped to rectify through taxation of international commerce through import tariffs. Significantly, the new nationalists largely espoused the views of Adam Smith, who, although making the case for less government interference in the economy, also propounded a viable—but limited—role for government in maintaining a navy and army capable of protecting trade lanes and national borders.
Weaknesses in the Articles also appeared on the diplomatic front, where America was being bullied despite its newly independent status. The British refused to evacuate their posts in the Old Northwest, claiming the region would fall into anarchy under the United States.39 Farther south, the Spanish flexed their muscles in the lower Mississippi Valley, closing the port of New Orleans to the booming American flatboat and keelboat trade. Congress sent nationalist John Jay to negotiate a settlement with Spain’s Don Diego de Gardoqui. Far from intimidating the Spaniards, Jay offered to suspend American navigation of the Mississippi for twenty-five years in return for a trade agreement favorable to his northeastern constituents! Western antinationalists were furious, but had to admit that without an army or navy, the Confederation Congress was powerless to coerce belligerent foreign powers. Nevertheless, Congress could not swallow the Jay-Gardoqui Treaty, and scrapped it.40
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Mike Fink, King of the River
The complicated issues of politics in the 1780s were paralleled by related, real-life dramas far removed from the scenes of government. For example, shortly after John Jay negotiated with Spain’s Don Diego de Gardoqui over American trading rights on the inland rivers, Big Mike Fink was pioneering the burgeoning river traffic of the Ohio and Mississippi rivers. Fink gained such a mighty reputation during America’s surge west of the Appalachians that he was dubbed King of the River.
Back in the days before steam power, the produce of the American frontier—pork, flour, corn, animal skins, and whiskey—was shipped up and down the Ohio and Mississippi rivers on thousands of flatboats and keelboats. Flatboats were crude flat-bottomed craft that could travel only downstream; keelboats were sleeker sixty-foot craft that could be poled upstream by the Herculean efforts of their crewmen. Early rivermen lived hard lives, enduring the hazards of ice, fog, snags, sandbars, waterfalls, and even Indian attacks as they plied their trade in the early West. Upon sale of their cargoes in Natchez or New Orleans, most rivermen walked back to their Ohio Valley homes via the Natchez Trace, braving the elements and attacks from outlaws.
Mike Fink so captured the public imagination that oral legends of his exploits spread far and wide and ultimately found their way into print in newspapers and almanacs. According to these stories, Fink was “half horse, half alligator” and could “outrun, out-hop, out-jump, throw down, drag out, and lick any man in the country!” In some tales, Fink outfoxed wily farmers and businessmen, cheating them out of money and whiskey. He could ride dangerous bulls, one of which, he said, “drug me over every briar and stump in the field.” The most famous and oft-repeated Mike Fink story is one in which he, à la William Tell, shoots a “whiskey cup” off a friend’s head.
These are good yarns, and some of them were no doubt true. But who was the real Mike Fink? Born near Pittsburgh, Pennsylvania (at the headwaters of the Ohio River), around 1770, Fink grew into a fine woodsman, rifleman, and frontier scout. He took up boating around 1785 and rose in the trade. He mastered the difficult business of keelboating—poling, rowing, sailing, and cordelling (pulling via a rope winch) keelboats upstream for hundreds of miles against the strong currents of the western rivers. Fink plied the Ohio and Mississippi during the very time frontier Americans angrily disputed Spanish control of America’s downriver trade.
By the early 1800s, Fink owned and captained two boats headquartered at Wheeling, West Virginia. Working his way west, Fink’s career paralleled that of American expansion into the Mississippi Valley, while at the same time reflecting the coarse and violent nature of the American frontier. One of the few documented accounts of the historic Mike Fink is an early nineteenth-century St. Louis newspaper story of his shooting the heel off a black man’s foot.
Responding to an advertisement in the March 22, 1822, St. Louis Missouri Republican, which called for “one hundred young men to ascend the Missouri River to its source” and establish a fur trading outpost in the Montana country, Fink was hired to navigate one of the company’s keelboats up the Missouri, working alongside the legendary mountain man Jedediah Smith.
An 1823 feud between Fink and two fellow trappers flared into violence that led to Fink’s murder. Thus ended the actual life of the King of the River. But mythical Mike Fink had only begun to live. He soon became a folk hero whose name was uttered in the same breath with Daniel Boone, Andrew Jackson, and Davy Crockett. Celebrated in folklore and literature, Mike Fink’s legend was assured when he made it into a 1956 Walt Disney movie.
Source: Michael Allen, Western Rivermen, 1763–1861: Ohio and Mississippi Boatmen and the Myth of the Alligator Horse (Baton Rouge: Louisiana State University Press, 1990), pp. 6–14, 137–39.
* * *
Nationalists held mixed motives in their aggressive critique of government under the Articles of Confederation. Honest champions of stronger government, they advanced many valid political, economic, military, and diplomatic ideas. Their opponents, perhaps correctly, called them reactionaries who sought to enrich their own merchant class. True, critics of the Articles of Confederation represented the commercial and cosmopolitan strata of the new nation. It just so happened that for the most part, the long-range interests of the young United States coincided with their own.
Throughout the early 1780s, nationalists unsuccessfully attempted to amend the Articles. Congress’s treasury chief, Robert Morris, twice proposed a 5 percent impost tax (a tariff), but Rhode Island’s solo resistance defeated the measure. Next he offered a plan for a privately owned “national” bank to manage fiscal matters and, again, twelve states concurred, but not Rhode Island. Matters came to a boil in September 1786, when delegates from the five states bordering the Chesapeake Bay convened in Annapolis, Maryland, ostensibly to discuss shared commercial problems. The nationalists among the Annapolis Convention delegates proceeded to plant the seed of a peaceful counterrevolution against the Confederation Congress.41 Delegates unilaterally called for a new meeting of representatives of all thirteen states to occur in Philadelphia in the spring of 1787. Although these nationalists no doubt fully intended to replace the existing structure, they worded their summons to Philadelphia in less threatening tones, claiming only to seek agreements on commercial issues and to propose changes that “may require a correspondent adjustment of other parts of the federal system.” The broadest interpretation of this language points only to amending the Articles of Confederation, although Hamilton and his allies had no such aim. They intended nothing less than replacing the Articles with a new federal Constitution. In that light, Rufus King captured the attitudes of many of these former Revolutionaries when he wrote of the delegate selection, “For God’s sake be careful who are the men.”42
The fly in the ointment when it came to making changes to the Articles was the clause requiring unanimous consent among the states to ratify any alterations, which made any plan to change them without such consent illegal. Consequently, the Constitutional Convention and the federal Constitution it produced, technically, were illegal. Yet this was a revolutionary age—only ten years earlier, these same Founders had “illegally�
� replaced one form of government with another. It is not incongruous, then, that these same patriots would seek to do so again, and, to their credit, they planned for this change to be nonviolent.43
Still, the nationalists’ call to Philadelphia might have failed but for one event that followed on the heels of the Annapolis Convention. Shays’ Rebellion, a tax revolt in Massachusetts, provided the catalyst that convinced important leaders to attend the Philadelphia meeting. Unlike other states, Massachusetts had not passed debtors’ laws, and thousands of farmers faced loss of their lands to unpaid creditors. Daniel Shays, a Pelham, Massachusetts, farmer and a retired captain in the Continental Army, organized farmers to resist the foreclosures, and under his leadership armed bands closed the courts of western Massachusetts, ostensibly to protect their property. Creditors, however, saw their own property rights in jeopardy.
By January 1787, Shays’ rebels were on the run. A lone battle in the rebellion occurred at Springfield, in which Massachusetts militia, under Continental general Benjamin Lincoln, attacked the Shaysites and dispersed them. After the smoke cleared, four men lay dead and Shays had fled the state. Lincoln’s troops arrested some of the rebels, fourteen of whom were tried and sentenced to death. But the government hardly wanted the blood of these farmers on its hands, so it worked out a compromise in which the governor commuted the men’s sentences and freed them. Shays’ Rebellion, however, quickly transcended the military and legal technicalities of the case, becoming a cause célèbre among nationalists, who pointed to the uprising as a prime example of the Articles’ weak governance. Only a stronger government, they argued, could prevent the anarchy of the Shaysites from infecting America’s body politic.44
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