72. Jack P. Greene, Understanding the American Revolution, 212–24. Other motives might have driven him as well; he was constantly in need of money to support his large family and his participation in public affairs. He had been among the disappointed Virginia land speculators cut off from profit opportunities by the 1763 British prohibition on settlements beyond the Alleghenies.
73. Jack P. Greene Understanding the American Revolution, 219
74. Sutton, Revolution to Secession, 12–13
75. King’s effort had been aroused by Timothy Pickering’s desire for a slavefree area north of the Ohio to settle former soldiers from New England. See Chapter 10. Pickering was so strongly anti-slavery that, as a senator from Massachusetts in 1804, he led an abortive secessionist movement of old Federalists in the five New England states and New York and New Jersey. The Federalists were particularly concerned that Jefferson’s purchase of the Louisiana territory would “inevitably lessen the weight and influence of the North in the affairs of the nation, augment slave representation, and endanger the Union by stretching boundaries so far as to weaken the country’s defenses.” Ernst, Rufus King, 281–2. Pickering had written to King in March, 1804, expressing his frustration with the situation: “Without a separation, can those [seven northern] states ever rid themselves of Negro presidents and Negro congress, and regain their just weight in the political balance?” Ernst, Rufus King, 281
76. Lee’s first reported speech in the House of Burgesses in 1759 concluded that slavery was, “dangerous, both to our political and moral interests.…Some of our neighboring colonies, though much later than ourselves in point of settlement, are now far before us in improvement; to what, sir, can we attribute this strange, this unhappy truth? The reasons seems to be this: that with their whites, they import arts and agriculture, whilst we, with our blacks, exclude both.” Chitwood, Richard Henry Lee, 18
77. Chitwood, Richard Henry Lee, 19. Richard Henry may well have shared his brother Arthur’s views on slavery. In 1767, Arthur published a moral and practical critique of slavery in Rind’s Virginia Gazette, March 19, reproduced in Nash, Race and Revolution, 91–6
78. Chitwood, Richard Henry Lee, 211–13
79. Nagel, Lees of Virginia, 111. Breen, Tobacco Culture, vividly details some of the excesses of the time.
80. Pauline Maier, Old Revolutionaries, 164–200
81. John Rhodehamer, Ed., George Washington: Writings (New York: Library Classics, 1977) 652
82. Richard Brookhiser, Founding Father: Rediscovering George Washington (New York: Simon & Schuster, 1996) 71–3, 131–6
83. Comments of delegates from here to end of Chapter 10: Farrand, Records, Vol. I, 578-88; 591-7; 600-606. Farrand, Records, Vol. II, 2-11
CHAPTER 11
A SLAVE-FREE NORTHWEST TERRITORY
1. JCC Vol. 32, 310. July 11, 1787. The committee consisting of Mr. Edward Carrington, Mr. Nathan Dane, Mr. Richard Henry Lee, Mr. John Kean, and Mr. Melancton Smith to whom the report was referred of a committee touching the temporary government of the western territory reported an ordinance for the government of the United States northwest of the river of Ohio, which was read a first time.
2. Smith, Letters of Delegates, Vol. 8, 621–2
3. Melancton Smith was the third member of the committee which recommended the Northwest Ordinance who was credited by Dane with bringing new ideas to bear on the issue. See text of Dane letter, Smith, Letters of Delegates, Vol. 8, 621–2. Smith’s experience in the next year in securing the ratification of the constitution in New York by adding a condition subsequent seeking a bill of rights illustrates a competence at working through conflicting polycentric problems to achieve a goal of stable government. See Robin Brooks, “Alexander Hamilton, Melancton Smith, and the Ratification of the Constitution in New York,” in Kermit Hall, Ed., The Formation and Ratification of the Constitution (New York: Garland, 1987) 93–112. On the general approach of the Federalists to ratification, see Rakove, Original Meanings, 94–130
4. They, along with Bension, were on a committee to deal with the land purchase.
5. See “Dane’s letter to King,” Smith, Letters of Delegates, Vol. 8, 621–2
6. The additional lands went into the hands of a group headed by speculator William Duer. That group went bankrupt. See Robin Brooks, “Melancton Smith: New York Anti-Federalist, 1774-1798,” 1964 PhD Thesis, University Of Rochester, 64–12,433 (Univ. Of Michigan Dissertation series) 117-43
7. July 13, 1787, JCC Vol. 32, 334–43
8. See May 1787, JCC Vol. 32, 281. The bracketed and lined words explain the title of the ordinance on May 9, as “An ordinance for the government of the western territory until the same shall be divided into different states.” On July 9, the title was “An ordinance for the temporary government of the territory of the U.S. NW of the River Ohio.”
9. See Chapter 9
10. These provisions included: 1. A more elaborate provision for intestate succession than had existed in the September 1786 draft. (314) This was a preoccupation of the Virginians. 2. Permission for the French and Canadian inhabitants of Kaskaskias and Post Vincent and former Virginians in nearby villages, to use their own laws of descent and conveyance, rather than those laid out in the ordinance, as required in the Virginia deed of cession. 3. A restatement of the “compact” concept found in Jefferson’s 1784 ordinance and King’s 1785 bill, which would assure that the elements in the ordinance were carried forward into state constitutions. “It is hereby ordained and declared by the authority aforesaid that the following articles shall be considered as articles of compact between the original states and the people and states in the said territory, and forever remain unalterable unless by common consent.” JCC Vol. 32, 339
11. “And for extending [to all parts of the confederacy] the fundamental principles of civil and religious liberty which form the basis whereupon these republics, their laws and constitutions are erected; to fix and establish those principles as the basis of all laws, constitutions, and governments, which forever hereafter shall be formed in the said territory; to provide also for the establishment of states and permanent government therein; and for their admission to a share in the federal councils on an equal footing with the original states at as early periods as may be consistent with the general interest.” These rights were: 1. Protection of religious liberty; 2. Proportionate representation of the people in the legislature. The question of proportional representation had been raised in several states where seaboard interests—including the slave owner interests—had retained political control despite the population shifts to the west. (Nevins, American States.) 3. Judicial proceedings according to the course of the common law; 4. Bail for non-capital offenses; no excessive bail or fines, no cruel or unusual punishment; 5. Compensation for property and services taken for the public good 6. No law interfering with bona fide private contracts. Rufus King may have had a hand in this; he apparently squeezed such a clause into the Constitution even though it had not been voted upon before the committee of detail redrafted the document. (See Ernst, Rufus King) 7. Promotion of schools and the means of education. This clause may reflect a long standing interest of Richard Henry Lee. In his letter to Col. Martin Pickett, March 5, 1786, Lee wrote: “A popular government cannot flourish without virtue in the people, and…that knowledge is a principal source of virtue; these facts render the establishment of schools, for the instruction of youth, a fundamental concern in all free communities.…Such establishments will be the surest means of perpetuating our free forms of government, for, when men are taught to know, and well to understand, the great inherent rights of human nature, they will take care not to suffer the hands of office, of violence, or of ignorance, to rob them of such inestimable blessings.” Lee offered to give two aces of land “for the sole use of a public school, or seminary of learning.” James Curtis Ballagh, Ed., The Letters of Richard Henry Lee, Vol. 2 (MacMillan Co.,1914) 411–12. In its July 9 form, the provision read: “Institutions for the promotion of r
eligion and morality, schools, and the means of education, shall forever be encouraged, and all persons while young shall be taught some useful occupation.” The final version read: “Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.” This version eliminated institutional support for religion. Governmental support for religion was, at the time, limited to Massachusetts, Connecticut, and New Hampshire. Ruth H. Bloch, “Battling Infidelity, Heathenism, and Licentiousness; New England Missions on the Post Revolutionary Frontier, 1792–1805,” in Frederick D. Williams, Ed., The Northwest Ordinance: Essays on its Formation, Provisions and Legacy (Lansing: Michigan State University Press, 1989) 41, 42
The initial draft reflected the New England approach of public support for religion, the final version the Virginia approach of separating church and state. 8. Respect and justice toward and for the Indians; 9. Navigable waters to the Mississippi and St. Lawrence to be “forever free without tax impost or duty.” See “Benjamin Hawkins to Governor Richard Caneel of North Carolina,” Smith, Letters of Delegates, 618, July 10. He reported that the Secretary of the Congress had written to him and to William Blount to return to NY to make a quorum. They did so on the July 4. “Blount to Caneel,” Smith, Letters of Delegates, 618, July 10. One object of returning was of “securing and preserving our right to the free and common use of the navigation of the Mississippi.” This, “which is very interesting to the western citizens of the southern states and regards their peace and welfare, has, at length, from a variety of circumstances unnecessary, as well perhaps as inappropriate to relate, been put in a better situation than heretofore.” Smith, Letters of Delegates, 618-19. There may be an implication that this language was involved in the willingness of the southern states to adopt the antislavery provision of the Northwest Ordinance. The South had long been interested in access to the Mississippi for the settlers west of the Appalachian. Southerners were adamant about opening the Mississippi, and considered the proposal by Jay to agree with Spain to close it for twenty-five years to be dangerous to the union as it served the Atlantic states at the expense of southern growth. Banning, Sacred Fire, 58–70, especially 68.
William Grayson, [VA] on May 25, 1785, moved before the Continental Congress that, “The navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, is, and are hereby declared to be, common highways, and be forever free, as well to the inhabitants of the said territory, as to the citizens of the United States, and those of any other states that may be admitted into the confederation, without any tax, impost, or duty thereof.” JCC, Vol. IV, 638. The motion was seconded by Rufus King [MA], although the northeastern states were assumed to be willing to accept closing of the Mississippi for commercial advantages which Spain might supply. 10. Three to five states to be carved out of the territory, thus keeping the “balance” of slave and free states in the Senate; 11. Admission as state on equal footing when reach sixty thousand free inhabitants, or sooner if Congress agreed.
12. Smith, Ed., Letters of Delegates, Vol. 7, 621–2. From July 6 through July 11, the date the committee bill was reported, the states of MA, NY, NJ, VA, NC, SC, and GA were present. July, 1987, JCC Vol. 32, 303-13. Connecticut, New Hampshire, and Rhode Island presumably would have supported the antislavery clause, but they were absent.
13. See Chapter 9
14. Smith, Ed., Letters of Delegates, Vol. 7, 621–2. From July 6 through July 11, the date the committee bill was reported, the states of MA, NY, NJ, VA, NC, SC, and GA were present. July, 1987, JCC Vol. 32, 303-13
15. Ibid. The provision was taken from King’s 1785 proposal, see Chapter 10.
16. This additional period would have allowed slave owners sufficient time to settle the area and become influential. As Madison commented on the twenty-year permission for the importation of slaves at the Convention in Philadelphia later that summer: “Twenty years will produce all the mischief that can be apprehended from the liberty to import slaves. So long a term will be more dishonorable to the national character than to say nothing about it in the Constitution.” Farrand, Records, Vol. II, 415, Aug. 15, 1787.
17. See Chapter 9
18. See “Bartholomew Tardiveau to Governor St. Clair, June 30, 1789,” in William Henry Smith, Ed., The St. Clair Papers II, (New York: Da Capo Press, 1971) 117–19. As it turned out, Governor St. Clair interpreted the clause as not applicable to existing slaves. Carter, Territorial Papers, Vol. II 332–33. St. Clair had become the first governor of the territory after Manasseh Cutler had withdrawn his support from Parsons at the behest of his “southern friends” and shifted his support to St. Clair. Not for the first, nor the last, time has the selection of an administrator influenced the interpretation of a statute. Nevertheless, the slave interests complained to Congress that the clause was causing slave owners to go to Missouri instead of Illinois. The slave interests came close to securing repeal of the antislavery state constitutional provision in Illinois in 1823. See Chapter 13, the Edward Coles story.
19. Finkelman, “Slavery and Bondage” in Williams, Northwest Ordinance; MacLeod, Slavery, Race 49–56. Governor St. Clair later interpreted it as applying to slaves subsequently brought into the territory, rather than as freeing those already there. But even this interpretation deprived slave owners of some rights they had previously, most particularly, the right to the labor of children born of slave mothers.
20. JCC Vol. 32, 343
21. Maryland had voted no in 1784, did not vote in 1787.
22. JCC Vol. 26, 247
23 JCC Vol. 28, 165
24. JCC Vol. 32, 343
25. Carrington carried the amendment to the Virginia cession agreement required by the ordinance through the Virginia legislature in 1788. His opinion in Pleasants v. Pleasants supported a broad interpretation of manumission agreements. See Robert Cover, Justice Accuse: Antislavery and the Judicial Process (New Haven: Yale University Press, 1975) 69–71
26. William H. Smith, Life and Public Service of Arthur St. Clair (Original,1882; Da Capo, 1971) 132, explains the antislavery clause by “the prevalence of antislavery sentiment among the prominent statesmen of Virginia, at that period. It was not until after 1808, the date of the suppression of the slave trade, when Virginia assumed a new relation to the cotton states, that this sentiment became unfashionable in the Old Dominion. In 1784–87, the echo of the Declaration of Independence had not yet died away. Jefferson believed slavery to be an evil, and drafted an article prohibiting it in all territory after 1800.”
27. Grayson had pressed the same motion through Congress in 1785 or 1786. William Blount (NC) was “interested” in the Mississippi question. See Collier, Decision in Philadelphia, 212–15
28. Smith, Letters of Delegates, Vol. 8, 621–2
29. Dane wrote to Rufus King on August 12, Smith, Letters of Delegates, Vol. 8, 636–37, discussing appointments of officers for the territory, and the timing of elections. “Much will depend on the directions given to the first settlements in my opinion, and as the eastern states for the sake of doing away the temporary governments, etc., established in 1784, and for establishing some order in that country gave up as much as could be reasonably expected, I think it will be just and proper for them to establish as far as they can consistently, eastern politics in it, especially in the state adjoining Pennsylvania. You are informed, I presume, of the terms of the Ohio contract. All circumstances considered I think they are advantageous to the public.”
Carrington, who was chairman of the committee which reported the Ordinance, wrote to Monroe on Aug. 7th: “We have at last made a break into the western lands.…This…will be a means of introducing into the country, in the first instance, a description of men who will fix the character and politics throughout the whole territory, and which will probably endure to the latest period of time. This company is formed of the best men in Connecticut and Massachusetts, and they will move out immediately
. I am about to join them with a few shares; what think you of such an adventure?” Smith, Letters of Delegates, Vol. 8, 631
Manasseh Cutler, the lobbyist for the Ohio Company, emphasized this point in pressing the Congress for the land contract. After threatening to walk out on the proposed deal and buy land from the states instead of Congress, Cutler said “At length, told them that if Congress would accede to the terms I had proposed, I would extend the purchase to the tenth township from the Ohio, and to the Scioto inclusively, by which Congress would pay near four millions of the national debt; that our intention was an actual, a large, and an immediate settlement of the most robust and industrious people in America; and that it would be made systematically, which must instantly enhance the value of federal lands, and prove an important acquisition to Congress. On these terms I would renew the negotiations, if Congress was disposed to take the matter up again.” Cutler, life, p. 296.
30. Manasseh Cutler saw that persuading the southerners, not the northerners, was the way to secure vast land grants to the Ohio Company. He paved the way with extensive correspondence with southern figures, then made his celebrated trip to New York, spending three days there, before journeying to Philadelphia, where he spent his time largely with southern representatives.
31. MacLeod, Slavery, Race, 44. Both MacLeod (54) and Finkelman, “Slavery and Bondage” in Williams, Northwest Ordinance, 74–7 overstate the importance of “enforcement” of fundamental rights, particularly in the period after the adoption of the ordinance. There was no enforcement mechanism at all for any purpose in most of the northwest territory at that time. “Ambiguous” overestimates the importance of “enforcement” of fundamental rights, particularly in the early period of our history.
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