Slave Nation
Page 17
The prohibition on slavery, including the provision for return of fugitive slaves reads:
There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes whereof the party shall have been duly convicted: provided, always, that any person escaping into the same, from whom labor or service is lawfully claimed in any one of the original states, such fugitive may be lawfully reclaimed and conveyed to the person claiming his or her labor or service as aforesaid.15
Dane’s clause was effective immediately, allowing the Ohio Company to encourage northern settlers to go quickly into Ohio country, without fear of having to compete with slave labor or of living in a slave state. In that sense, the ordinance was stronger than the earlier versions proposed by Jefferson and King that allowed slavery in the territory until 1800.16 At the same time, it was limited to protecting the ownership rights of masters only in the original states. This demonstrates that the clause was essentially copied from King’s 1785 proposal that was never voted upon.17 The clause says nothing about the status of slaves escaping from any new states or territories that might be created in the future. These issues had arisen sharply at the Convention in Philadelphia, but the clause was not modified to consider the future. This suggests the haste in which the provision had been taken from King’s proposal.
Dane’s antislavery clause would have an immediate impact on persons who were considering bringing slaves into the territory. Their property would be at risk. Given the choice, slave owners would—and did—go into the southwest or across the Mississippi where their “property” was secure.18 Thus the clause—by its existence rather than its administration—was to some extent self-executing.19
The ordinance passed only because of the votes of the southern slave-holding states. The eight states voting for the ordinance were Massachusetts, New York, New Jersey, Delaware, Virginia, North Carolina, South Carolina, and Georgia. The ordinance was adopted with equal votes from non-slave states and from all of the major slave states.20 Seven votes were needed for passage. If only two of the slave states had voted no, been divided, or had not appeared, the ordinance would not have passed. Three years earlier, Virginia and South Carolina had voted against Jefferson’s antislavery amendment, and North Carolina was divided, which meant a “no” vote.21 Two years earlier, Virginia, the Carolinas, and Georgia had opposed even considering King’s 1785 motion to impose a prospective limitation on slavery. Thus three of the slave states, Virginia, North Carolina, and South Carolina, changed their votes from 1784, and those states plus Georgia changed their votes from 1785 to assure the creation of a “free” northwest. Had the slave states maintained the positions they held in 1784 and 1785, the ordinance would have failed.
Virginia played a crucial role in the adoption of the ordinance. Two Virginia delegates (Lee and Hardy) had voted against consideration of King’s motion in 1785. In 1787, Lee had changed his vote of 1785, and Carrington had replaced Hardy.25 Virginia supported a stronger antislavery resolution in 1787 than the one it had opposed in 1785.26
In addition to the fugitive slave clause copied from King’s 1785 proposal, there were other provisions in the new ordinance that were sweeteners for gathering support from the southern delegates. The statement supporting freedom to navigate of the Mississippi would help the southwesterners in their opposition to a proposed treaty that would have
allowed Spain to close the Mississippi at New Orleans for many years.27 The proposal for justice for the Native Americans may have helped to bring Benjamin Hawkins of North Carolina on board. Hawkins had vast experience in negotiating with the Native Americans, and would later become an “Indian Agent” for the southwest territory.
Nathan Dane of Massachusetts and Edward Carrington of Virginia believed that the initial settlers of the northwest territory would be New Englanders. Dane wrote:
I think the number of free inhabitants, sixty thousand, which are requisite for the admission of a new state into the confederacy, is too small; but having divided the whole into three states, this number appears to me to be less important. Each state in the common course of things must become important soon after it shall have that number of inhabitants. The eastern state of the three [Ohio] will probably be the first, and more important than the rest, and will no doubt be settled chiefly by eastern people; and there is, I think, full and equal chance of its adopting eastern politics.28
The term “eastern politics” included opposition to slavery.29 The Northwest Ordinance was and is considered the finest hour for the often maligned Continental Congress, and uncertainty concerning the reasons for its adoption still exists.
Credit has been claimed for Nathan Dane of Massachusetts who drafted it, for Timothy Pickering who promoted it, for Thomas Jefferson who drafted the 1784 ordinance, and for Manasseh Cutler of the Ohio Company who lobbied for land in the Ohio region.30 Dane wrote that Richard Henry Lee was of “considerable importance” in shaping the proposal. They all represented forces at work in forging conditions for the ordinance, but none of them have been credited with the underlying concept of adopting an ordinance applying only to the land north of the Ohio.
Duncan MacLeod, in his penetrating analysis in Slavery, Race, and the American Revolution, ultimately considered that the ordinance was a sort of “accident” because its passage did not fit the pattern of prior or subsequent events.31 Some historians consider the Northwest Ordinance to have been a “tacit agreement,” or an unintended policy, permitting slavery south of the Ohio.32 But there was nothing tacit about it. Both supporters and opponents of slavery understood—and acted upon the understanding— that slavery was lawful in all the territory of the United States unless and until a government altered its status.33 As Edward Coles said in 1856:
As drafted, the Northwest Ordinance assured both North and South of a political balance between slave and free states. It not only prohibited slavery in the northwest, but guaranteed its continued vitality in the southwest.34
In fact, the Northwest Ordinance was a perfect fit to the pattern of events at the Constitutional Convention in Philadelphia. It accurately addressed the fear of the northerners that they would have to compete with slave labor as they went west—a fear that could have split the union.
William Grayson of Virginia, in a letter to James Monroe in August, 1787, suggested both economic and political reasons why the South agreed to the division.35 One economic reason was to prevent slave-labor competition in growing tobacco and indigo north of the Ohio; another was to enhance the value of Virginia lands on the south side of the Ohio.36 One political reason may have included the desirability of securing the return of fugitive slaves. But Grayson says nothing one way or the other about the major political reason: getting the North to accept the “Connecticut compromise” counting three-fifths of the slaves as “population” entitled to representation in the House. The three-fifths rule also assured the South that there would be no more shortterm efforts by the North to challenge slavery.37
Historian Staughton Lynd has clearly outlined the relationship between the Convention and the Congress as it relates to the Northwest Ordinance in Class Conflict, Slavery, and the United States Constitution.38 His analysis suggests that North and South each expected the ordinance to benefit their political interests and were prepared to gamble on future developments. He also argues that slavery in the northwest might have been given up by the South at the Constitutional Convention then in progress in Philadelphia, in exchange for counting slaves as threefifths of a person in establishing representation in the House of Representatives.39 But the three-fifths rule had already been agreed to by the Committee on July 3, before the southern contingent left for Philadelphia. While that agreement was not final, it was the key to holding the nation together and was bound to be given substantial weight by the delegates.
Yet Lynd may have been correct in another sense. The outrage expressed at slavery at the Convention after June 30 was at least in part the fear that sl
avery would extend into the Ohio country and foreclose development by individual farmers. This concern was most likely recognized by Benjamin Franklin or Richard Henry Lee shortly after Madison made his “it’s about slavery” speech on June 30. Once the northern fears of the expansion of slavery to their west were removed, they agreed to go along with the threefifths rule.
Lynd’s interpretation underestimates the importance to the North of the prospect of being enclosed in a nation of slavery, a concern expressed repeatedly at the Convention from June 30 to July 14.40 The agreement reflected in the ordinance was to draw a line between slave and free territory and the states that would emerge from it—a profound decision which limited the operation of the three-fifths rule to states that were south of the Ohio River, and would later be extended to the west after the Louisiana Purchase.
Lynd’s analysis depends on a showing that the Convention in Philadelphia was aware of the details of the Northwest Ordinance by July 12, when the Convention approved the three-fifths formula.41 Legal historian Paul Finkelman has pointed out that the travelers from New York to Philadelphia, who Lynd relies on as carriers of the news, could not have done so, because the antislavery provision of the ordinance was not introduced until the 13 of July.42
When the genesis of the antislavery clause in the Northwest Ordinance is found to have been in Philadelphia, not New York, problems of timing are avoided. The crucial date for Congressional action in New York was July 13. Information on the action reached Philadelphia late July 14 or early July 15. The relevant Convention action in reliance on the Northwest Ordinance took place July 16 with the adoption of the Connecticut compromise. That compromise included the adoption, without debate, of the three-fifths rule. The Convention adjourned after a brief discussion of other matters.43
When they first came to the Constitutional Convention in Philadelphia, southern states planned to vigorously protect their interest in slavery.44 Their starting point was the pro-slavery position that had been written into the Articles of Confederation through the privileges and immunities clause and later confirmed in the 1784 ordinance. The status quo treated slavery as lawful and protected in all the territories.
The Virginia plan did not change the anti-Somerset provision of the privileges and immunities clause of the Articles. Later in the Convention, the southern states successfully included three-fifths of their slaves in determining how many representatives a state was entitled to in the House of Representatives.45 They postponed the abolition of the slave trade for twenty years by proposing a requirement of a twothirds majority for legislation regulating commerce, and then surrendering the demand as a compromise.46 They also secured federal assistance in the case of slave rebellions, and the right to the return of fugitive slaves, thus continuing their repudiation of the rule in the Somerset case.47 In the course of the debates, southern delegates repeatedly threatened to walk out if their terms were not met.48
Yet in New York, they agreed to the antislavery status of the northwest territory, and the free states they knew would emerge from it. The key point the southern delegates gained by supporting the ordinance was that they satisfied the northern demand for a slave-free territory. The territory was divided along the line that Ellsworth had suggested on June 29. The North then accepted the Connecticut compromise and the union was saved. The emergence of new states in the territory south of the Ohio would protect southern slavery interests in the Senate, while the three-fifths rule would protect them in the House by giving greater weight to white voters in the South than to white voters in the North.
Other reasons have been given for the willingness of the South to give up on slavery in the northwest. In winter climates, slavery was not viewed as cost effective as in the South. While this condition was not prohibitive along the Ohio, it would make slavery less cost effective further north. The northwest territory was a big headache for the country, as it had been for Britain. Virginia had ceded her western lands to the Continental Congress in 1783, in part to get out of, or resolve, the tangle of claims which had developed there, along with Indian troubles and foreign intrigue.49
Some southerners may have believed that the antislavery clause would weaken the northwest territory relative to the South by curtailing the use of slave labor. In addition, they may have believed Monroe’s report on the poor quality of lands in the territory so that that they were not overly interested or concerned.50
Paul Finkelman, a widely recognized student of the Northwest Ordinance, has concluded,
The vigorous defense of slavery by the Deep South delegates to the Convention stands in contrast to the adoption of [the antislavery provision] of the ordinance, if that article is seen as “antislavery.” However, it is likely that the Deep South delegates in Congress thought that the article would protect slavery where it was and allow it to spread to the southwest; thus they may have seen the article as pro-slavery, or at least as protective of slavery.51
Historian Charles Beard noted that the southern interests were different from those of the North:
The third group of landed proprietors were the slave holders. It seems curious at first glance that the representatives of southern states which sold raw materials and wanted competition in shipping were willing to join a union that subjected them to commercial regulations devised immediately in behalf of northern interests.…An examination of the records shows that they were aware of this apparent incongruity, but that there were overbalancing compensations to be secured in a strong federal government.…The southern planter was also as much concerned with slave revolts as the creditor in Massachusetts was concerned in putting down Shays’s “desperate debtors,” and therefore supported the national government as an agency to suppress such revolts.52
Certainly the southerners would not want restless, rebellious, poor, antislavery Yankees to burst out of New England and come south.53 Despite the stated fears about slave revolts, the only real rebellion that the Virginians had ever faced came from poor whites, not blacks.54 Bacon’s rebellion of 1676 was undertaken, said the official version, by a white “rabble of the basest sort of people, whose condition was such as by a change could not admit of worse.”55
But Nathanial Bacon himself was well born and came to Virginia with enough money to build a house and buy a plantation. At the time, Governor William Berkeley was trying to placate Native American tribes in the area to reduce attacks on colonists. Bacon’s approach was to attack and kill Native Americans to reduce the danger to the colonists. Many of the settlers agreed with Bacon. This brought him in conflict with the governor. Bacon accused him of misconduct and marched on the capital with a band of settlers. Thereafter, when much maneuvering had taken place between the Berkeley and Bacon factions, Bacon burned Jamestown to the ground. He died and his rebellion sputtered out after more killing and burning.56
The fears of white revolt in Virginia led to the formalization and expansion of race slavery. The reports of Shays’s Rebellion in 1786, coupled with similar expressions of debtor discontent in the middle colonies and in Virginia itself, must have rekindled memories of Bacon’s rebellion, and the extensive damage that poor whites could do if aroused. Better that the Yankees keep their antislavery and other “antisocial” attitudes north of the Ohio.
This was no hypothetical risk. Northerners were already “invading” the South. The white population of the lower South increased dramatically between 1750 and 1780. Historian Jack Greene observes, “A substantial part of the astonishing white-population growth among the lower southern states was, like that of Virginia, the result of immigration from the northern states.”57 This population shift was noted by southern representatives at the Constitutional Convention.
Channeling the Yankees northwestward created little risk that the northwest territory would rapidly spawn new states in that area because of Monroe’s reports about the barren quality of the land.
Leaving the northwest slave-free would have other advantages. Antislavery southerners like Edward Coles and free
blacks might migrate to the territory.58 Southerners may have viewed the territory as a safety valve or dumping ground for antislavery sentiment, protecting slavery from erosion from within as well as invasion from without.59 The expansion of slavery south of the Ohio would be less troubled by southern antislavery ideas.60 This thought of using the territory as a kind of Siberia was not unusual. In 1801, at the legislature’s request, Governor Monroe wrote to President Jefferson about the possibility of purchasing “lands outside the state”—including lands in the northwest territory—to send persons “obnoxious to the laws or dangerous to the peace of society.”61 Jefferson asked in response, “Should we be willing to have such a colony in contact with us?” He had a different view of the future. He anticipated continental expansion of “a people speaking the same language, governed in similar forms and by similar laws; nor can we contemplate with satisfaction either blot or mixture on that surface.”62
This prospect of the northwest as a safety valve for antislavery feeling might explain the pleasure that Edward Carrington took in telling James Monroe how the Yankees were going to move into the northwest territory. And why Manasseh Cutler used the argument that Yankees would settle the northwest to persuade his southern friends to support the land deal; and why Richard Henry Lee was proud of the “strong toned” government of the Northwest Ordinance.
The channeling of New England antislavery people north of the Ohio protected the institution of slavery in the rest of the country. This could be accomplished while keeping the constitution free of antislavery taint, and building into it numerous protections for slavery interests. This was the real pro-slavery interest in the summer of 1787, which Madison crystallized on June 30 when he defined the primary difference between the states as not size but slavery.