This policy, as embodied in a document, was the famous ordinance for the government of the territory of the United States northwest of the Ohio River, passed Congress on July 13, 1787, and commonly known as the "Ordinance of 1787." It may be called a special federal constitution for the organization and government of the territory belonging to the United States preliminary to the creation of states with their own constitutions. It is conspicuous among the instruments of the country as shaping the character of government in the territory it was framed for. Daniel Webster said of it: "I doubt whether one single law of any law given, ancient or modern, has produced effects of more distinct, marked and lasting character than the Ordinance of 1787." Its bill of rights has led some to speak of it, with a little grandiloquence, perhaps, as the Magna Charta of the west. Its most famous proviso was one forbidding the existence of slavery in the territory at a time when that institution was forbidden nowhere else. The Ordinance was the culmination of previous attempts to cope with a problem that was even then recognized as a growing danger, and as it constitutes our immediate political foundation we here examine it in its parts.

The Ordinance contemplates the ultimate division of the territory into not less than three nor more than five states, certain boundaries of these being definitely set. It established grades of government, based on population, for these divisions; "Five thousand free male inhabitants, of full age," entitling to the "second grade" of territorial government, and sixty thousand entitling to statehood "on an equal footing with the original states in all respects whatever." The territorial government, in the first grade, is to be in the hands of a governor and three judges, whose first duty is to "adopt and publish in the district such laws of the original states, criminal and civil, as may be necessary and best suited to the circumstances of the district." The Governor shall be the Commander-in-Chief of the militia and shall have the appointing of most of the officers, both military and civil.

On entering the second grade the inhabitants of a territory shall be entitled to elect representatives from their counties or townships for their own General Assembly, and this "General Assembly or Legislature shall consist of the governor, legislative council and a house of representatives," the legislative council to consist of five members, to continue in office five years, and to be appointed and commissioned by Congress out of ten that have been nominated by the Governor and the Representatives. The body thus formed is to have the authority to make laws "not repugnant to the principles and articles in this Ordinance," all bills passed to be "referred to the Governor for his assent." The Legislature has the authority to elect a delegate to Congress, and this delegate will have the right to join in the Congressional debates, but can not vote. The bill of rights feature takes the form of "articles of compact between the original States and the people and the states in the said territory," to forever remain unalterable, unless by common consent. These articles are, that no person demeaning himself in a peaceable and orderly manner, shall ever be molested on account of his mode of worship or religious sentiment; that all shall be entitled to the benefits of the writ of habeas corpus, to a trial by jury, to judicial proceedings according to the course of the common law, and to proportionate representation in the Legislature. All persons shall be bailable, unless for capital offense; all fines shall be moderate, and no cruel or unusual punishments shall be inflicted; no man shall be deprived of his liberty or property but by the judgement of his peers or the law of the land.

It may seem somewhat curious that before taking up these fundamentals, in fact, in the very first provision, the Ordinance deals with the question of the equitable distribution of intestate estates, thus checking at the start any system of primogeniture. The last article in the document is the one that is cited oftenest in history - namely, the slavery clause, which affirms that "there shall be neither slavery no involuntary servitude in the said territory, otherwise than in the punishment of crimes whereof the party shall have been duly convicted." This was regarded as the provision of all others that was to give a distinctive character to the civilization of the northwest, for it meant free territory as opposed to the institution of slavery, which was already coming to be regarded as a national curse. The promise it held out undoubtedly played its part in the character of the population that from the beginning gravitated to this region.

From these salient features of the Ordinance it will be seen that its congressional framers aimed not only at a constitution of the territories, as such, but as a federal instrument, as well, that should impose certain limitations on future state constitutions. Thus while the state constitution is, in a sense, the "fundamental law of the land," it must, after all, recognize a higher, ultimate authority.