10. Charles B. Galbreath, History of Ohio (American Historical Society, Inc., 1925) 154–57 “ 11. That a constitution for the new state be formed by the members of the association previous to their commencing the settlement, two-thirds of the associators present at a meeting duly notified for that purpose agreeing therein. The total exclusion of slavery from the state to form an essential and irrevocable part of the constitution.” Ibid. 156. [emphasis added]. See Jay. A. Barrett, Evolution of the Ordinance, 7–9
11. See Alden T. Vaughn, Roots of American Racism, (New York: Oxford University Press, 1995) 136–174 for a discussion of debate over the origins of racism.
12. Calliope Film Resources. Shays’s Rebellion. Copyright 2000 CFR. http://www.calliope.org/shays/shays2.html, visited October 19, 2004
13. Statuary, Shays’s Rebellion, 120–134
14. JCC, Vol. 26, 275-79. The plan applied to territory “ceded or to be ceded” to the United States, thus covering territory both north and south of the Ohio river. This was the coverage of all proposed ordinances until 1787. Lynd, Class Conflict, 192
15. http://www.yale.edu/lawweb/avalon/presiden/jeffpap.htm.
16. JCC, Vol. 26, 247, April 19, 1784. The rules of the Congress required that at least two delegates vote for a measure for the state’s vote to count.
17. Randall, Thomas Jefferson, 363
18. Prearranged absences at critical junctions in the legislative process are not unknown today.
19. By 1784, Massachusetts had abolished slavery by court decision and Pennsylvania had enacted its gradual emancipation act.
The number of states that might be created north of the Ohio was reduced to three to five. See Barrett, Evolution of the Ordinance, 17–27 discussing the number of states, and including a map.
When the territory acquired twenty thousand “free inhabitants,” a convention could be called to establish a permanent constitution and government. These states were to be admitted to the union “on equal footing with the said original states” when the population equaled that of the least populous state and upon meeting certain conditions. The states were to: (1) remain in the confederation; (2) be subject to the Articles of Confederation (3) not interfere with U.S. land titles or regulation concerning disposition of U.S. lands (4) pay part of the federal debt apportioned as with the other states; (5) not tax lands or property of the U.S. (6) have a republican government without hereditary titles (7) not to tax non resident proprietors higher than residents; The ordinance was to be a “charter of compact” and “stand as fundamental constitutions between the thirteen original sates and each of the several states newly described.” This provision sought to bridge a gap in the power of the Confederacy. The Confederation had no power over territories because none had been provided in the Articles; yet it was necessary to provide for governance for many reasons. The Articles could be amended only by unanimous consent which was never achieved. The voluntary adoption of a “compact” would obscure the want of power. Pinckney at the Convention and Madison in the Federalist both considered the NWO to be unconstitutional under the Articles.
20. See Peter S. Onuf, “Settlers, Settlements, and New States,” In Jack S. Green, Ed., The American Revolution: Its Character and Limits (New York: NYU Press, 1987) 171–96
21. See Freehling, Road to Disunion, 138–41. An expression of this concern is found in Timothy Pickering’s letter to Rufus King in 1785. See Chapter 9
22. See Chapter 8
23. See Chapter 9
24. See Chapter 9
25. Finkelman, Slavery and the Founders: Race and Liberty in the Age of Jefferson, 2ed, 148; Wiecek, Antislavery Constitutionalism, 60.
26. Ernst, “Pickering to King, March 8, 1785,” Rufus King, 54–55
27. See Wills, Negro President, 183–93
28. The third possibility, of course, was that Congress expressed no judgment on the slavery issue. This seems unlikely, given that there was existing law about that issue; it was a “two value” proposition—slavery was either legal or illegal.
29. The reasoning assumes, as was true in connection with the slavery issue, that there is no third possibility. The approach taken by Marshall was a variation on the canon “Expressio unius est exclusio alterius,” commonly applied when the legislature has chosen one concept over others which are inconsistent with it. Sutherland, Statutory Construction, 4e (Willmette, IL: 1984). The “founding fathers” agreed that the Constitution was to be interpreted as if it were legislation, in accordance with the wellknown principles of statutory interpretation set forth by Blackstone. See H. Jefferson Powell, “The Original Understanding of Original Intent,” from 98 Harvard L. Rev. In Jack N. Rakove, Ed., Interpreting the Constitution: The Debate Over Original Intent (Boston: Northeastern University Press, 1990) 53. Story agreed; Story, Commentaries, 134–148. Blackstone’s first edition was well known in the colonies. Volume 1, 59–62, contains general principles of interpretation designed to identify the “intent” of the legislature. Blackstone, Commentaries, 59–62
30. See Chapter 8. This restriction had been a part of the southern led effort to protect state supported slavery from external control under the Articles.
31. “Among the enumerated powers, we do not find that of establishing a bank or creating a corporation. But there is no phrase in the instrument which, like the Articles of Confederation, excludes incidental or implied powers; and which requires that everything granted shall be expressly and minutely described. Even the tenth amendment, which was framed for the purpose of quieting the excessive jealousies which had been excited, omits the word ‘expressly,’ and declares only that the powers ‘not delegated to the United Sates, nor prohibited to the states, are reserved to the states or to the people’; thus leaving the question, whether the particular power which may become the subject of contest has been delegated to the one government, or prohibited to the other, to depend on a fair construction of the whole instrument. The men who drew and adopted this amendment had experienced the embarrassments resulting from the insertion of this word in the Articles of Confederation, and probably omitted it to avoid those embarrassments.” McCullough at Story, Commentaries, adopts this language without attribution, 147. See discussion in Warren, The Supreme Court in United States History, (1926) 501. The omission of the term “expressly” from the tenth amendment was discussed in oral argument in McCullough by Mr. Pinckney. “The reservation in the tenth amendment to the Constitution of ‘powers not delegated to the United States’ is not confined to powers not expressly delegated. Such an amendment was indeed proposed, but it was perceived that it would strip the government of some of its most essential powers and it was rejected.” “Landmark Briefs and Arguments of the Supreme Court of the United States,” Constitutional Law, Vol. 1, 170.
Marshall’s doctrine of implied powers was interpreted by John Randolph, Chief Justice of Virginia in 1824 as permitting Congress to “emancipate every slave in the United States.” Albert J. Beveridge, Life of John Marshall, Vol. IV (Houghton, Mifflin Co., 1919) 308–309, 420
In Marbury v. Madison, Marshall used analogous reasoning. He stated “Affirmative words are often, in their operation, negative of other objects than those affirmed.”
32. The only background law applicable in light of congressional silence was the anti-Somerset provision of the Articles, which protected slavery in all the states. This background law may not have been fully recognized by the historians because it was not supported by case law during the short period of the operation of the Articles. But the very shortness of the period, coupled with the absence of any centralized court, made it unlikely that the Articles would have had an extensive judicial exegesis. It is our two-hundred-plus years’ experience with a centralized high court which makes us think that judicial interpretations of the Constitution are crucial to its understanding.
33. When a similar issue arose in Ohio in the nineteenth century, the Circuit Court treated the answer as obvious. One Palmer sought to enjoin the county commissi
oners from building a drawbridge over the Cuyahoga River on the grounds that it would obstruct navigation, in violation of the “free navigation” clause of the Northwest Ordinance. Defendants argued that the ordinance was inapplicable because the “western reserve” had not been ceded by Connecticut to the federal government until some time after the Ordinance was adopted. Justice McLean, after holding that the drawbridge was not an obstruction within the meaning of the ordinance, concluded:
“That this reserve was, to some extent, subject to the legislation of Connecticut for several years after the date of the ordinance is admitted. But when this territory and the jurisdiction over it were ceded to the United States it became subject to the ordinance, the same as every other part of the northwest territory. Rights acquired under the former laws are governed by those laws. But on its cession to the union, all the laws of the territory, and especially its fundamental law, became the law of the reserve.” Palmer v. Cuyahoga County Commissioners, 2 Ohio Federal Decisions 264, 266 (1843).
This situation was similar to that of slavery in Virginia at the time of cession to the federal government. Rights to hold slaves acquired under Virginia law remained governed by those laws; on cession to the union, the laws of the territory would apply, but there was no law prohibiting slavery at the time of cession in 1783, and none became applicable until 1787.The deed of cession states that “certain settlers…who have professed themselves citizens of Virginia, shall have their possessions and titles confirmed to them, and be protected in the enjoyment of their rights and liberties.” The settlers were identified as “French and Canadian inhabitants, and other settlers of the Kaskaskies, St. Vincents, and the neighboring villages.” JCC Vol. 26, 114. The possible negative inference that slavery was to be illegal in the vast reach of the territory not mentioned in the cession agreement would not outweigh the underlying Virginia law protecting slavery.
34. “That there shall be neither slavery nor involuntary servitude in any of the states, described in the resolve of Congress of the 23 April, 1784, otherwise than in punishment of crimes, whereof the party shall have been personally guilty: And that this regulation shall be an article of compact, and remain a fundamental principle of the Constitutions between the thirteen original states, and each of the states described in the said resolve of the 23 April, 1784.” JCC, Vol. 28, 164, March 16, 1785.
The ordinance, which was later adopted, provided for surveys laying out township squares. The proposed land ordinance of 1785, April 12, did address another problem—education in the territories—that would become entwined with the slavery issue in the Northwest Ordinance. JCC Vol. 28, 250–4 “There shall be reserved the central section of every township for the maintenance of public schools and the [section] immediately adjoining the same to the northward, for the support of religion, the [profits] arising therefrom in both instances to be applied forever according to the will of the majority of male residents of full age within the same.”
35. Votes: Aye NH, MA, RI, CN, NY, NJ, PA, MD (8); No. VA, NC, SC, GA(4). Ernst, Rufus King, 55. Counts the votes as 8–3, with Virginia and Carolinas opposing. JCC Vol. 28, 164. Ernst also says that eighteen of the twenty-six delegates present supported the motion in committee. (At 55, cites JCC, Vol. 28, 164) He adds, “These features (the prospective application and the fugitive slave clause) were designed to win support from the slave states, but Congress still took no action. Recognizing that the committee revisions were unacceptable to the northern delegations, King refrained from pressing the issue. His political sense told him the time was not yet ripe for action. Original motion in “Papers of Constitutional Convention,” No. 31, f.327, National Archives; He also cites “King to Pickering, Apr. 15, 1785,” King Papers, N.Y. Hist. Soc.
36. Other members were David Howell [RI] and William Ellery[RI].
37. JCC, Vol. 28, 239, April 6, 1785. The Articles appeared to require only seven votes for the adoption of this resolution. The language in boldface in the proviso may have been derived from the Pennsylvania Law of 1780, 1 Laws of the Commonwealth of PA, 492, 496; 2 Laws of the Commonwealth of PA, 443-446. 2 Carey & Bioren’s Laws, 246, Sec. 3, stated: “That all persons, as well Negroes and mulattoes as others, who shall be born within this state from and after the passing of this act shall not be deemed and considered as servants for life or slaves; and that all servitude for life or slavery of children in consequence of the slavery of their mothers, in the case of all children born within this state from and after the passing of this act as aforesaid, shall be and hereby is utterly taken away, extinguished, and forever abolished.” Section 11 provided that the act “shall not give any relief or shelter to any absconding or runaway Negro or mulatto slave or servant who has absented himself or shall absent himself from his or her owner, master or mistress, residing in any other state or country, but such owner, &c., shall have like rights and aid to demand, claim, and take away his slave or servant as he might have had in case this act had not been made.” [emphasis added] This proviso was repealed in 1826. John Codman Hurd, The Law of Freedom and Bondage in the United States, (Original,1862; Reprinted, New York: Negro Universities Press, 1968) 68–69. The proviso may have been intended to comply with the anti-Somerset provision of the Articles of Confederation.
38. He initially expected the motion to pass. See “Grayson to Madison, May 1, 1785,” Smith, Letters of Delegates, Vol. 8, 109–10. At the final debate on the ordinance, at the third reading, May 18–20, 1785, (JCC, 375), states present were NH, MASS, CN, NY, NJ, PA, MD, and VA—eight states in all. If seven votes were required to include the anti-slavery clause and MD voted affirmatively, the motion would have passed, with only VA voting against, assuming the previous voting pattern on the motion to consider the King proposal reflected views on the merits. However, MD had voted to consider the King motion by a 2–1 vote. (March 16) If one of those supporters had been absent, MD vote would not have been in the affirmative, and the motion would have lost.
39. The more usual way of accomplishing the result sought by the boldface language would be by repealing the 1784 ordinance. This was done in the Northwest Ordinance of 1787 which repealed the 1784 ordinance only with respect to the northwest territory.
40. Wager Swayne, “Monroe to Jefferson, January 19, 1786,” The Ordinance of 1787 and the War of 1861 (New York: C. G. Burgoyne, 1892) 39
41. JCC Vol. 33, 131-35, March 24, 1786; Barrett, Evolution of the Ordinance, 33–38. The report was considered by a committee of Congress in March, and again in May, 1786. Another committee made a similar recommendation, and included a plan for territorial government. JCC Vol. 30, 251, May 1786.
42. JCC Vol. 30, 390-94, July 7, 1786
43. For the view that Monroe never got to the northwest territory, see Jorge M. Robert, “James Monroe and the Three to Five Clause of the Northwest Ordinance,” http://www.earlyamerica.com/review/2001_summer_fall/monroe.html
If this view is correct, it is possible that the letter was intended to lead to a reduction of the North’s advantage in any expansion of the union that Jefferson’s eight to ten states would have created north of the Ohio River.
44. Members of the Committee were William Samuel Johnson, William Henry, Charles Pinckney, Nathan Dane, and Melancton Smith. JCC Vol. 31, 669; Barrett, Evolution of the Ordinance, 42–43
45. JCC Vol. 31, 669, September 19, 1786.
(1) it applied to all territories; (2) Congress to appoint governor secretary, five judges with common law and chancery jurisdiction; (3) to secure personal liberty and property of inhabitants and other purchasers; (a) preserve habeas corpus and trial by jury (b) intestate succession to children in equal parts regardless of sex; free alienation during life (c) same rules for non-resident proprietors real estate (d) governor commands militia, appoints magistrates, lay out counties and townships (e) free male inhabitants to elect representatives to general assembly, property qualifications for voting and serving (f) mechanics of government (g) inhabitants subject to federal debt, apportioned by same rul
es as to other states (h) when achieve thirteenth of citizens of original states, to be admitted with congressional consent, on equal footing with original states.
This bill had a second reading on May 9, 1787. JCC, Vol. 32, 274-75. Wednesday, May 9, 1787. The draft appearing on 281-3 reflects both the form of the ordinance on May 9, and the form after the debates on May 10 and July 9.
46. It contained the following provisions:
JCC Vol. 32, 281, Wednesday, May 9, 1787:
1. Congress to appoint a governor, a secretary, and three judges with common law jurisdiction, following earlier drafts 2. Inhabitants entitled to habeas corpus and trial by jury, as in the September, 1786 draft 3. Governor and judges to adopt such laws of the original states, civil and criminal, as they think best suited, to be effective until the organization of a general assembly, unless disapproved by Congress 4. Governor to be commander in chief of militia, appoint all non-general officers, general officers appointed by Congress, appoint magistrates and civil officers, lay out the territory into counties and townships, as in the 1786 draft 5. When have five thousand free male inhabitants, may elect representatives to a general assembly. Electors to have two years residence and fifty acres freehold or life estate, Representatives to have two hundred acres fee simple, from 1786 draft 6. General assembly to consist of governor, legislative council, and house of representatives; cannot affect lands of United States or tax non-resident proprietor’s lands higher than residents, as in 1786 bill. 7. Governor can convene, prorogue, and dissolve assembly, as in 1786 draft 8. Inhabitants subject to part of federal debt apportioned according to common apportionment measure used in other states, as in earlier drafts going back to 1784
On July 9, the bill did not include the provision for the “equal footing” admission of new states when they had one-thirteenth the population of the original states, which had been in the 1786 draft. The “equal footing” issue was before the Constitutional Convention in Philadelphia in early July.
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