Slave Nation

by Alfred W. Blumrosen

  Richard Henry Lee probably left Philadelphia on July 5, arriving in New York on July 7, and taking his seat in Congress on July 9.68 Thus he would have had a day in Philadelphia before he left and a day in New York before he took his seat in Congress to discuss the proposal to prohibit slavery north of the Ohio River with delegates in both places.

  Although the meetings of the Constitutional Convention were secret, Lee was not an outsider. McGaughy writes, “In spite of the Convention delegates’ efforts to maintain security, Richard Henry Lee obviously found a line into the inner workings of the gathering.”69

  He was privy to the thinking of the leaders from both the South and North with whom he had worked during the Revolution and at the Continental Congress. In the previous year, he had served as president of the Congress. Lee took this role seriously, living and entertaining lavishly after Congress decided to pay the expenses of its president.70 He had declined membership in the Constitutional Convention because he viewed it as a body that would report to Congress; and that Congress would make the “real” decisions. He thought it inappropriate to be a member of this “subordinate” body.71

  Lee enjoyed his role in the pantheon of the American Revolution. His eloquence and reasoning as a speaker, and his unceasing activity in the name of colonial freedom, coupled with a desire for recognition on a national scale, made him a public figure recognized by both North and South.72 Historian Jack Greene describes Richard Henry Lee thusly:

  Unlike John Wilkes or Patrick Henry, he seems to have lacked the inclination or the necessary breadth of appeal to secure a broad following among the public at large and become a demagogue. His proper forum was the legislative chamber; his audience, his fellow legislators.…He was not an ideologue who would take his case to the country, but a “parliamentary politician” who preferred to operate inside the legislative halls and within the small circles of the politically powerful.73

  Lee had often been the public voice of Virginia in legislative halls. He had vetoed the Galloway plan at the First Congress in 1774 by threatening to walk out and had been selected to make the motion for independence in 1776. That year he also circulated a draft constitution for Virginia developed in consultation with John Adams. The draft, according to historian Robert Sutton, was, “pivotal in persuading the delegates [to the Virginia Convention] that there was a better government than royal authority.”74 He had been treated as a senior statesman for a decade, having served as president of the Continental Congress during passage of the Land Ordinance of 1785. That year, he had presided over—and helped defeat—Rufus King’s effort to revive Jefferson’s antislavery clause.75 As a result, he knew firsthand the problems of the territory; the interest of the North in a slave-free area as well as the concerns of the South. By 1787, the increasing pressures of the Ohio Company to purchase land free of slavery also would have focused Lee’s attention on the northern territory.

  The capacity to translate political sentiments into legislative action was a major hallmark of his career. It makes him the preeminent candidate as the promoter of the antislavery clause in the Northwest Ordinance at both the Constitutional Convention and the Continental Congress in New York.

  Lee’s own attitude toward slavery and the North had distinctive characteristics. His initial speech in the House of Burgesses in 1759 blamed slavery for Virginia’s cultural backwardness.76 Lee, in his youth, saw that the evils of slavery adversely affected whites as well as blacks who were “equally entitled to liberty and freedom by the great law of nature.”77 Beyond that, Lee had cultivated friendships with New Englanders, beginning in 1773, with a letter to Samuel Adams and followed up with long-term relations with John Adams, that sometimes got him into trouble with fellow Virginians.78 Lee was more friendly toward the New Englanders than to some of his Virginia colleagues, whose “hasty, unpersevering, aristocratic genius of the South suits not my disposition and is inconsistent with my ideas of what must constitute social happiness and security.”79

  According to historian Pauline Maier, he was not only among the Jeffersonians in his opposition to slavery while living on its proceeds, but was an admirer of the spartan culture of New England. Maier captured the complex forces animating his distinguished Revolutionary career in her essay on Lee.80 It concludes:

  Men like Lee were hardly conservative revolutionaries, dedicated only to preserving Virginia’s past. Their Virginia was by nature too impermanent to afford men like Lee the “social happiness and security” they sought. The task they faced was to wrest from instability a more satisfying world. If Lee abandoned the prospect of personal migration [to Massachusetts], he could still hope to resolve his own dilemmas and those of his family not by independence alone but through a larger moral redefinition that for him and others was integral to the Revolution of 1776—by refashioning all America after his image of a sober, diligent, meritocratic northeast. Thus it was that the ways of New England, which for Richard Henry Lee as for Samuel Adams came to represent the hope and meaning of a new American republic, had great appeal to a Virginian of good family, but poor prospects.

  This portrait of Lee’s character enhances the likelihood that he supported the expansion of northern culture both because he thought it would limit slavery and because he saw virtues in a slave-free society. Although the date he left for New York is uncertain, he arrived there in time to take his seat on July 9. While the five delegates made their way to New York and the Continental Congress, the Convention in Philadelphia spent the week arguing about a number of issues that always seemed to return to the question of slavery. The level of depression rose as the risks of failure discussed on Monday, July 2, continued to mount. On July 10, the New York delegation pulled out of the Convention altogether. George Washington wrote to Alexander Hamilton asking him to return, but painting a woeful picture of what he would find if he did:

  The state of our councils which prevailed at the period you left this city…are now, if possible, in a worse train than ever; you will find but little ground on which the hope of a good establishment can be formed. In a word, I almost despair at seeing a favorable issue to the proceedings of the convention, and do therefore repent having had any agency in the business.81

  Historian Richard Brookhiser emphasized the importance that Washington placed on his reputation, and how he considered the risks to that reputation of each new venture that presented itself as an opportunity. But the risks to his reputation in attending the Convention were simultaneously risks to the principle of self-government that he valued so highly.82 Washington’s unhappiness in his letter to Hamilton reflected the condition of the convention on July 10. It worsened the next day. Some examples of comments concerning slavery made between July 11 and 14 come from Madison’s notes, taken to record the proceedings.83

  On July 11, Gouverneur Morris of Pennsylvania told the Convention he was:

  Reduced to the dilemma of doing injustice to the southern states or to human nature, and he must therefore do it to the former. For he could never agree to give such encouragement to the slave trade as would be given by allowing them a representation for their Negroes, and he did not believe those states would ever confederate on terms that would deprive them of that trade.

  The next day, July 12, William Richardson Davie of North Carolina became impatient. He said it was

  high time now to speak out. He saw that it was meant by some gentlemen to deprive the southern states of any share of representation for their blacks. He was sure that North Carolina would never confederate on any terms that did not rate them as at least three-fifths. If the eastern states meant therefore to exclude them altogether the business was at an end.

  Gouverneur Morris responded that

  He came here to form a compact for the good of America. He was ready to do so with all the states. He hoped and believed that all would enter into such a compact. If they would not he was ready to join with any state that would. But as the compact was to be voluntary, it is in vain for the eastern states to insis
t on what the southern states would never agree to. It was equally vain for the latter to require what the other states can never admit; and he verily believed the people of Pennsylvania will never agree to a representation of Negroes.

  Gouverneur Morris continued the next day, July 13, when he saw that:

  The southern gentlemen will not be satisfied unless they see the way open to their gaining a majority in the public councils.…Either this distinction [between northern and southern states] is fictitious or real. If fictitious let it be dismissed and let us proceed with due confidence. If it be real, instead of attempting to blend incompatible things, let us at once take friendly leave of each other. There can be no end of demands for security if every particular interest is to be entitled to it. The eastern states may claim it for their fishery, and for other objects, as the southern states claim it for their peculiar objects.

  In response, Pierce Butler of South Carolina explained: The security the southern states want is that their Negroes may not be taken from them which some gentlemen within or without doors, have a very good mind to do.

  On Saturday, July 14, Luther Martin of Maryland took on the larger states:

  They are…the weakest in the union. Look at Massachusetts. Look at Virginia. Are they efficient states? He was for letting a separation take place if they desired it. He had rather there be two confederacies than one founded on any other principle than an equality of votes in the Senate.

  Jonathan Dayton of New Jersey reiterated that, “The smaller states can never give up their equality. For himself he would in no event yield that security for their rights.”

  Rufus King of Massachusetts had a “firm belief that Massachusetts would never be prevailed on to yield to an equality of votes.”

  James Madison of Virginia, a staunch opponent of equal votes for the states in either branch of Congress explained that:

  If a proper foundation of government was destroyed by substituting an equality in place of a proportional representation, no proper superstructure would be raised.… The evil instead of being cured by time, would increase with every new state that should be admitted, as they must all be admitted on the principle of equality…the perpetuity it would give to the preponderance of the northern against the southern scale was a serious consideration. It seems now to be pretty well understood that the real difference of interests lay, not between the large and small but between the n(orthern) and southern states. The institution of slavery and its consequences formed the line of discrimination. There were five states in the South, eight on the northern side of this line. Should a proportional representation take place it is true, the northern side would still outnumber the other; but not in the same degree at this time; and every day would tend toward an equilibrium.

  And James Wilson of Pennsylvania reminded the Convention that:

  The great fault of the existing confederacy is its inactivity. It has never been a complaint against Congress that they governed overmuch. The complaint has been that they have governed too little. To remedy this defect we were sent here.…Will not our constituents say we sent you here to form an efficient government and you have given us one more complex indeed, but having all the weakness of the former government?

  While this inconclusive squabbling continued in Philadelphia, the problem of slavery which threatened the existence of the union at the Convention in Philadelphia was being resolved at the Congress in New York.

  Chapter 11

  * * *

  A Slave-Free Northwest Territory

  * * *

  While the Constitutional Convention in Philadelphia staggered to a “dead stop,” the Continental Congress in New York came to life. The five delegates arriving from the Convention in Philadelphia created a quorum so the Congress could make decisions. On July 9, 1787, the Congress returned to the land ordinance that it had considered back in May. The ordinance, which related to the entire western territory, was referred to a new committee consisting of Richard Henry Lee and Edward Carrington from Virginia, Nathan Dane from Massachusetts, Melancton Smith of New York, and John Kean of South Carolina.1

  Nathan Dane, the drafter of the ordinance, described what happened next in a letter to Rufus King of Massachusetts three days after the event:2

  There appears to be a disposition to do business and the arrival of R. H. Lee is of considerable importance. I think his character serves, at least in some degree, to check the effects of the feeble habits and lax mode of thinking of some of his countrymen. We have been employed about several objects, the principal of which have been the government enclosed and the Ohio purchase; the former you will see is completed, and the latter will probably be completed tomorrow. We met several times and at last agreed on some principles—at least Lee, Smith, and myself.3 We found ourselves rather pressed. The Ohio Company appeared to purchase a large tract of federal lands—about six or seven millions of acres—and we wanted to abolish the old system and get a better one for the government of the country, and we finally found it necessary to adopt the best system we could get.

  The committee took only two days to return with a much-expanded proposal. Part of one of those two days was taken up with a meeting by Carrington, King, and Dane with Manasseh Cutler concerning his proposal from the Ohio Company to buy land in the territory.4 This short time seems hardly enough to develop the conceptions that went into the Ordinance and reduce them to acceptable language. This supports the view that the decision about slavery had been made earlier in Philadelphia, to be implemented in New York.

  The draft was prepared by Nathan Dane of Massachusetts, Richard Henry Lee of Virginia, and Melancton Smith of New York.5 Smith was both strongly antislavery and a land speculator who was involved in the arrangement by which the Ohio Company’s proposed purchase of 1.3 million acres escalated to 6 or 7 million.6

  The Dane-Lee-Smith draft of the ordinance was given its first reading on July 11, had its second reading on July 12, and was adopted on July 13.7 The first critical step taken was to change the name of the ordinance from “An ordinance for the government of the western territory until the same shall be divided into different states” to “An ordinance for the temporary government of the territory of the U.S. NW of the River Ohio.”8

  All previous land ordinances had encompassed all of the territory, north and south of the Ohio, acquired or to be acquired by the United States. This was the first time that a territorial ordinance was limited to the north of the Ohio River. Restricting the land ordinance to the northwest meant that slavery continued to be lawful south of the Ohio.9 This change is another indication that the decision to protect slavery north of the Ohio had emerged to address the crisis at the Constitutional Convention in Philadelphia.

  It appeared to respond to the pressures to create a slavefree northwest arising from both the Convention and the Ohio Company speculators who had been seeking slavefree areas for development since 1783. The draft produced by the new committee contained fourteen significant elements in addition to the provisions already before the Congress, some of which had been considered earlier but had never been organized into a single coherent program.10 In addition to those rights stated in the earlier draft—jury trial, habeas corpus, and non-discriminatory taxation of non-resident proprietors—the new provisions adopted what we today would call “fundamental rights” as the basis for the territorial government and the state governments that would later emerge.11

  Dane, on behalf of the committee, moved the provisions of the ordinance one by one. He had not intended to introduce the antislavery provision until the rest of the ordinance had been approved, and even then he was doubtful. He knew that only Massachusetts of the northern states was present, and that all five of the southern states that had a perfect record of opposing every measure that cast doubt on slavery were also present.12 He thought— with good reason—that the antislavery provision would suffer the same fate as Jefferson’s proposal of 1784 and King’s proposal in 1785.13 But, after the rest of the ordinance had been ado
pted, Dane was surprised, or more likely astounded. He wrote to King:

  When I drew the ordinance (which passed, a few words excepted, as I originally formed it) I had no idea the states would agree to the sixth article, prohibiting slavery, as only Massachusetts of the eastern states was present, and therefore omitted it in the draft; but finding the House favorably disposed on this subject, after we had completed the other parts, I moved the article, which was agreed to without opposition.14

  His letter states that he heard southern representatives “favorably disposed” about an antislavery provision. We do not have a record of who spoke in favor of the provision, but history points directly at Richard Henry Lee. He had often been the spokesman for Virginia’s positions on legislative issues. He was probably supported by fellow Virginian Edward Carrington, and by the antislavery Melancton Smith of New York. Representatives of the other slave states who had just been informed of the new southern position on slavery may have remained silent. But that was enough for Dane. At that point, he moved the article, “which was agreed to without opposition.”

  From his letter to King, it is clear that Dane had not been informed of the southern plan. His letter quoted here strongly suggests that the southerners had already agreed among themselves to support the proposal. This collaboration is further evidence that the decision to create a no-slave zone was a serious response to the northerners’ concern about slavery at the Philadelphia convention.

  Lee and delegates from Philadelphia may not have told Dane about the plan, because they needed time to persuade the southern delegates to give up slavery north of the Ohio River. If their plan had not worked, they would not have been embarrassed by Dane’s awareness of their effort. The important point for the southerners in New York was not to debate the proposal, but to adopt it so that the northerners in Philadelphia would understand that they had won a slave-free area north of the Ohio, and perhaps save the union from dissolution.