This deletion was consistent with the agreement that the Ohio River would be the dividing line between slave and free states. Pinckney may have been attempting to improve the agreement, but the committee on detail ignored his concern. This decision completed the understanding which had been reached earlier concerning the no-slave status of the northwest territory. This change in the privileges and immunities clause made clear that the master’s right to take a slave into a non-slave state and then force him to return south—guaranteed in the Articles—was not a privilege or immunity of a citizen of the United States. This clause coupled with the fugitive-slave clause created a distinction between slaves who escaped from a slave state and were subject to recapture, and slaves who had been brought into a free state by their masters and could not be compelled to return.
At the end of same day, Tuesday, August 28, 1787, Butler and Pinckney from South Carolina suggested including fugitive slaves and servants in the extradition clause relating to returning criminals to the state where a crime was committed, but Sherman of Connecticut pointed out that there was “no more propriety in the public seizing and surrendering a slave or servant than a horse.”29 Butler withdrew his proposal to rephrase it.
On Wednesday, August 29, the package deal concerning the number of votes needed to regulate commerce and the duration of the slave trade was adopted. The slave trade was allowed to continue for twenty years, until 1808.30 The effort to require a two-thirds vote for regulation of commerce was rejected, meaning that a simple majority would be sufficient to adopt controls on commerce. Both provisions were adopted without dissent.
The provision dealing with fugitive slaves was more complex. The Northwest Ordinance had adopted King’s draft fugitive slave clause of 1785 without substantial change. It applied only to slaves “from whom labor or service is lawfully claimed in any one of the original states.” The word “lawfully” was deleted and the limitation to slaves escaping from the original states was removed, making the provision applicable to slaves escaping states which might be created later.31
No person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due.32
This clause was also adopted without discussion. By 1787, the fugitive-slave issue would become important, as slaves began escaping north and the northern states were not helpful concerning their return.33 The fugitive-slave clause satisfied both northern and southern economic interests. Southerners might expect the clause to help get some of their runaway slaves back or discourage them from seeking freedom in the first place. The clause also assured northerners, concerned that former slaves would drive down labor rates, that they would not have to compete with so many escaped slaves seeking jobs that whites would otherwise hold.34
Nevertheless, the continuous efforts of slaves to escape across the line of the Ohio River, and of slave catchers to repossess them, served in the nineteenth century to sharpen the distance and increase the hostility between the settlers of slave states and those of free states. The antislavery mood in the northern states during the nineteenth century politicized a number of situations where slave owners sought to use the judicial process to recover their “property.”35
Thus the Constitution plus the Northwest Ordinance drew a line, not only between slave and free territories but between states which in the future might be created. It continued the subordination of free-state law to that of the slave states but only with respect to fugitives. The case of a slave who had come to a free state or territory with his master and refused to return—the issue in the Somerset case—presumably would be subject to the law of the jurisdiction in which the question of freedom was raised. This was the rule announced in Somerset’s case. The United States Supreme Court in the Dred Scott case of 1857 disavowed the distinction between slave and free states drawn in the Northwest Ordinance with respect to black slaves. It held that slavery was lawful everywhere in the country. This decision all but guaranteed that a civil war would follow.
The final reference to slavery at the Convention came on September 10, in a discussion of the method of amending the Constitution:
Mr. Rutledge said he never could agree to give a power by which the articles relating to slaves might be altered by the states not interested in that property and prejudiced against it. In order to obviate this objection, these words were added…‘provided that no amendments which may be made prior to the year 1808, shall in any manner affect’ [the extension of the slave trade until 1808].36
The interaction between the Convention and the Congress illuminates the role of Manasseh Cutler of Massachusetts, the agent for the Ohio Company, which had been seeking extensive lands in the northwest territory since 1783. Cutler was a distinguished clergyman, a military chaplain during the Revolution, a doctor, and a scientist. Ohio Company speculators, including many former soldiers, had been seeking land in the northwest since 1783 to encourage migration from the crowded North. They petitioned Congress for land again in 1787.
Cutler made a trip to both New York and Philadelphia in July of 1787. He arrived in New York on July 5, presented letters of introduction to members of Congress on July 6, attended meetings with the committee that was considering the Ohio Company proposition, saw the sights, and met extensively with people both in and out of Congress who could aid in his project.37 On July 10, while awaiting the report of the committee drafting a revised Northwest Ordinance, a committee composed of Carrington, King, Dane, and Bension reported favorably on the Ohio Company’s request to buy land in the territories from the Congress. All except Bension were also members of the committee that would recommend the Northwest Ordinance.
Cutler then went to Philadelphia for five days where he met with many of the delegates to the Constitutional Convention. He was hustling the most important people in the nation over the terms of the land deal which he hoped to make with the Congress. He had thought the ordinance issue was largely settled when he left New York. The remaining question involved the terms on which the land deal would be made, and the personnel who would govern the northwest territory.
Cutler and Congress engaged in hard bargaining after his return to New York from Philadelphia on July 19. On July 23, Congress passed a bill setting terms for an agreement with the Ohio Company which were not favorable enough for Cutler. He reacted by threatening to take his money and credit and buy lands then held by some of the states. He also dropped General Samuel Holden Parsons as the Company’s candidate for governor of the territory, and threw his support to Congressional president Arthur St. Clair, a Scottish-born Revolutionary War soldier who had moved to Pennsylvania. Cutler’s diary suggests that his decision to drop Parsons in favor of St. Clair was well received by his “southern friends,” and smoothed the way for the contract. St. Clair’s views were well known to southerners whom he had served with under General Nathanael Greene in the Revolution. They may have seen him as more “flexible” toward southern interests than General Parsons, a puritanical New Englander, was likely to be.
Once it was assured that St. Clair would become governor of the territory, he used his influence to gain support for the contract with the Ohio Company. St. Clair’s later pro-slavery interpretation of the Northwest Ordinance may have been anticipated by his southern supporters for the governorship. St. Clair lobbied the northeastern delegates to support the proposed deal, and on July 27, Congress adopted more favorable terms, enabling the Ohio Company to buy millions more acres of land than it had originally sought.38
The haste in which this newly modeled Northwest Ordinance was adopted is attributable to the Congress’s desire for the land deal to go through. The inclusion of such fundamental matters as slavery would have caused at least raised eyebrows, unless some such matters had been agreed upon beforehand by those in Philadelphia who found the ordinance compatible with the protect
ion of slavery.
The agreement to divide the federal territory into slave and free areas was ratified by the Virginia legislature in 1788, and by the First Congress under the Constitution in 1789 and 1790.39
In December, 1788, after the Constitution had been ratified, Virginia had an opportunity to invalidate, or at least thoroughly confuse the legality of the Northwest Ordinance. In 1783, Virginia had ceded the northwest territory to the federal government, on condition that ten states be created in the territory north of the Ohio River in accordance with a plan developed by Jefferson. But by 1786, on the basis of a recommendation from Monroe, Congress concluded that this division was impractical.40 It asked Virginia to modify its cession agreement to allow between three and five states in the territory. Congress included the three to five state proviso in the Northwest Ordinance, and, after its adoption, sent it to Virginia with a request that Virginia ratify the change. Edward Carrington, who had voted for the ordinance as a delegate to the Continental Congress had no doubt that Virginia would do so. He reported to Jefferson on October 23, 1788:
The western territory belonging to the United States has more effectually received the attention of Congress during this session than it ever did before. Enclosed you will receive the ordinance for establishing a temporary government there, and providing for its more easy passage into permanent state governments. Under the old arrangements the country might upon the whole have become very populous, and yet be inadmissable to the rights of state government, which would have been disgusting to them and ultimately inconvenient for the empire. The new arrangement depends on the accession of Virginia which there can be no doubt of obtaining.41
Virginia did so on December 30, 1788. The Virginia legislation recited the provision of the Northwest Ordinance which required that the constitutions and governments be formed in conformity to the principles contained in the ordinance—which included the no-slavery clause. The Virginia legislature, knowing that these principles included a prohibition on slavery, “ratified and confirmed” the Northwest Ordinance.42
Both Congress and the Virginia legislature assumed that a modification of the cession agreement was necessary to effectuate the ordinance. Although the formal legal relation between the cession agreement and the ordinance was never determined, it was assumed that Virginia had veto power over the ordinance. While the vote of the Virginia delegates to the Constitutional Convention in support of the ordinance might have been considered idiosyncratic or accidental by some historians, the ratification by the legislature most certainly was done with full knowledge of its antislavery character. The absence of debate about the matter in Virginia suggests that the division of the territory had been agreed to on grounds understood and accepted by the Virginians.43
On August 7, 1789, the First Congress sitting under the new Constitution adopted as Chapter VIII of the Statutes of the United States, appearing in 1 Stat. 50, “An act to provide for the government of the territory northwest of the river Ohio.” The introductory clause read:
Whereas in order that the ordinance of the United States in Congress assembled, for the government of the territory northwest of the river Ohio may continue to have full effect, it is requisite that certain provisions should be made, so as to adapt the same to the present Constitution of the United States.
Those provisions required the governor to report to the president rather than Congress, provided for presidential appointment and removal of officers with senatorial advice and consent, and for the secretary to act in the absence of the governor. There was no debate on this implicit ratification of the ordinance, which brought it into line with the new Constitution by redefining the chain of authority stipulated in the Articles of Confederation.44
The same Congress, in 1790, again ratified the Northwest Ordinance by making it applicable to territories south of the Ohio, with one fundamental difference—slavery was permitted. This difference is further evidence of the understanding that the Northwest Ordinance drew a line on slavery in the United States. The language used to accomplish this result was as obscure as that used in the Constitution concerning slavery.
The inhabitants…shall enjoy all the privileges, benefits, and advantages set forth in the ordinance of the late Congress for the government of the territory…northwest of the river Ohio. And the government of the said territory shall be similar to that which is now exercised in the territory northwest of the Ohio; except so far as is otherwise provided in an act of Congress of the present session, entitled “An act to accept a cession of the claims of the state of North Carolina to a certain district of western territory.”45
The act accepting cession from North Carolina had been approved on April 2, 1790.46 It approved the “deed of cession” from North Carolina that contained the following condition:
The territory so ceded shall be laid out and formed into a state or states, containing a suitable extent of territory, the inhabitants of which shall enjoy all the privileges, benefits, and advantages set forth in [the Northwest Ordinance]…provided always that no regulation made or to be made by Congress shall tend to emancipate slaves.47 (emphasis added)
When the cession act was considered in the House of Representatives on March 26, 1790, the Annals of the Congress reported that:
A condition in the Act of Cession, relative to the emancipation of slaves, that Congress should not (as in the act for the government of the western territory) provide for their freedom occasioned some debate; an amendment was prepared and debated, but not adopted.48
With these few words, the First Congress under the Constitution confirmed that the line between slave and free territories had been drawn at the Ohio. It also decided, in response to a petition by Ben Franklin on behalf of the Pennsylvania Society for the Abolition of Slavery, that
Congress have no authority to interfere in the emancipation of slaves, or in the treatment of them within any of the states; it remaining with the several states alone to provide any regulations therein, which humanity and true policy may require.49
But the territories were different. There, Congress could and did regulate slavery, until the political will failed in 1854. In the Kansas-Nebraska Act, Congress declared that popular sovereignty would decide whether a state would be free or slave. The Civil War was then only seven years away.50
Whatever the problems and shortcomings in the northwest in connection with slavery in future years, the founding fathers had enacted the first blanket prohibition of slavery in the history of the world covering an area of two hundred sixty thousand square miles, or one-third of the land area of the United States at that time.51 This was agreed to by the South for the same reason that had motivated their assumption of the leadership of the Revolution in 1774; the protection of slavery under the changed conditions and attitudes about slavery that had emerged since 1774 when John Adams made the deal to protect slavery at the beginning of the Revolution.
Chapter 13
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How Then Should We View the Founding Fathers?
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From 1787 on, the story of the interpretation and administration of the Northwest Ordinance is confused. In the early nineteenth century, political figures paid homage to the ordinance as a reflection of the higher law of the Magna Carta and the Declaration of Independence. Ultimately the Free Soil Party and the Republican Party emerged.1 At the same time, administrators, judges, and congressional committees narrowly construed the antislavery provision, slave owners evaded or ignored it, and in 1857 the Supreme Court declared it to have no legal effect.2 Nonetheless, the ordinance worked to channel pro-slavery settlers south and west of the territory, and encouraged those who were antislavery to settle in it.3
Indeed, it is impossible to imagine the Civil War without the Northwest Ordinance. Ohio, Indiana, and Illinois would have become slave states without it—it was a near thing.4 The North could not have pursued a war without those states.
Beyond that, a Lincoln would not have emerged from a slave state. Lin
coln’s father, a farmer in Kentucky, crossed the Ohio into Indiana in 1816 when Lincoln was seven, partly because of religious objections to slavery, partly because he did not want to compete with slave labor, and partly because, by virtue of the Northwest Ordinance, land titles were clearer in the territory than where the southern land occupancy system had generated uncertainty.5
The enforcers of the Northwest Ordinance were realestate speculators with lands in Kentucky and west of the Mississippi, who advised people moving west that the ordinance would prevent them from using or obtaining slaves, so they should steer clear of the territory. The result was that, while southern Ohio, Indiana, and Illinois were settled in part by Virginians and later Kentuckians, they never achieved the political mass that would enable them to overturn the antislavery principles of the ordinance, although they tried. Meanwhile the prospect of a slave-free state attracted those who opposed slavery.
One such person drawn to the territory because of the antislavery provision in the Illinois constitution was the extraordinary Virginia aristocrat Edward Coles. From an old Virginia family, Coles was a cousin of Dolley Madison and served for six years as President James Madison’s secretary.
He took Thomas Jefferson’s Declaration of Independence seriously. In 1814, six years after the end of Jefferson’s presidency, he initiated a famous correspondence.6
He wrote to Jefferson:
My object is to entreat and beseech you to exert your knowledge and influence in devising and getting into operation some plan for the gradual emancipation of slavery.…In the calm of this retirement you might, most beneficially to society, and with much addition to your own fame…put into complete practice those hallowed principles contained in that renowned Declaration, of which you were the immortal author.
Slave Nation Page 19
