Slave Nation

by Alfred W. Blumrosen

  32. Robinson, Structure of American Politics, 382, states that the territory south of the Ohio “ was tacitly set aside for future consideration.” David Brion Davis, Problem of Slavery, 155: “The Northwest Ordinance tacitly implied that there would be no opposition to the extension of slavery south of the Ohio.” Peter J. Parish, Slavery: History and Historians (Harper & Row, 1995) 18: “In 1787, the framers of the Constitution employed various circumlocutions to avoid using the actual word ‘slavery,’ but they gave the institution tacit recognition and protection where it already existed.” Lynd, “Compromise,” in Williams, Northwest Ordinance.

  Fehrenbacher, Dred Scott Case, 86–87, suggests that the two policies concerning slavery were not intended. “Without being entirely conscious of doing so, perhaps, it officially adopted a policy of having two policies regarding slavery in the western territories. North of the Ohio, slavery was forbidden.…South of the Ohio, Congress did not establish or protect slavery in federal territory. It merely refrained from prohibiting the institution or exercising any kind of authority over it.” He disagrees with the “tacit sanction of slavery” theory as a “perspective distorted by hindsight,” because the decision to limit the ordinance to the northwest was made before the antislavery clause was introduced.(79) But the decisions to exclude slavery from the northwest and to repeal the 1784 ordinance to the extent it was inconsistent were taken at the same time and together divided the nation in two. Fehrenbacher erroneously assumed that the Northwest Ordinance repealed the 1784 ordinance in its entirety. (79) Feherenbacher does not address the probability that, because the colonies that ceded their land claims to the United States—particularly Virginia— had explicitly permitted slavery, that institution remained lawful until Congress acted against it. See Chapter 9.

  Paul Finkelman, a major 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 Article VI 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.” But he agrees that the “chain of events [leading to its adoption] remains a puzzle.” Finkelman, “Slavery and Bondage” in Williams, Northwest Ordinance, 88n4, 67

  33. See Chapter 8, note 29

  34. Clarence W. Alvord, Governor Edward Coles, 394-395; “Coles’ History of the Ordinance of 1787, read before the Historical Society of Pennsylvania, June 9, 1856.”

  35. “Grayson to James Monroe, Aug. 8, 1787,” Smith, Letters of Delegates, 631–2. “Since my last, Congress has passed the ordinance for the government of the western country, in a manner something different from the one which you drew, though I expect the departure is not so essential but that it will meet your approbation. You will observe that the consent of Virginia is necessary to entitle the people to certain rights, as also that the former act is repealed absolutely; I am satisfied, therefore, you will do every thing in your power to get the state to alter her act of cession in such a manner, as will square with the ordinance: It seems that the subject was not taken up last year. The clause respecting slavery was agreed to by the southern members for the purpose of preventing tobacco and indigo from being made on the N.W. side of the Ohio, as well as for sev’l other political reasons.” There follows a discussion of how the Ohio Company has purchased lands and proposed to “settle the country very thick and without delay; of course the adjacent lands will become very valuable…from the great number of inhabitants in the eastern states, and in the Jerseys, I should not be surprised to see them in a very few years extend themselves by additional purchases quite to the Mississippi, thereby form a complete barrier for our state [Virginia], at the same [time] greatly validating the lands on the Virginia side of the Ohio.”

  This and other letters have given rise to speculation concerning the reasons for the southern switch. Lynd has extensive discussion on the issue at 180–8 of “Compromise.”

  36. See Grayson’s letter, note supra. His reference to “several other political reasons” carries on the southern tradition of avoiding public or written discussion of slavery considerations at that period. At the Virginia ratifying convention, Grayson expressed concern about northern domination of the new government, and possible northern oppression of southern slave interests by taxing slaves. See Banning, Sacred Fire, 254. See also Mason’s concerns, expressed in Frederic Bancroft, Slave Trading in the Old South (University of SC Press, 1996) 7–8

  37. See Chapter 10 for a discussion of the legality of slavery in the territory between 1783 and 1787.

  38. Lynd, Class Conflict, 185–213

  39. Lynd, Class Conflict, 185-213. Davis, Problem of Slavery, 154n75, doubts this thesis because evidence of such a deal would have come out in later debates. But this is unlikely because the later debates at the Convention did not involve the repudiation of the Northwest Ordinance. Lynd believed that discussions between delegates to New York and Philadelphia may have fashioned a compromise which took account of the uncertainties as to whether the northwest or the southwest would be developed more rapidly and what effect this would have on control of the Congress under the Constitution which was in the process of formulation. His view is that the expected southern opposition to the antislavery provision in the ordinance was tempered by three factors: (1) the northwest states might support southern policies in Congress without slavery, (2) the ordinance might have been viewed as tacit endorsement of slavery in the southwest, and (3) there may have been an agreement to speed admission of the new states in the northwest by lowering population requirements for admission.

  40. See Chapter 9.

  41. Farrand, Records, Vol. I, 589-99

  42. It did not appear in the draft of July 11. Lynd, Class Conflict, 208

  43. Farrand, Records, Vol. II, 13-19

  44. Paul Finkelman, “Slavery and the Constitutional Convention.” The “liberation” of a quarter of the slaves in the South during the war both demonstrated the necessity of slavery and contributed to southern nervousness about their personal security. On the effect of the loss of slaves during the war on slave holders at the end of the Revolution, see Frey, 237–8, 243. See also, Paul Finkelman, Imperfect Union, 28, 36

  “General Pinckney, August 21,” Farrand, Records, Vol. II, 364 (Madison) “South Carolina can never receive the plan if its prohibits the slave trade. In every proposed extension of the powers of Congress, that state has expressly and watchfully excepted that of meddling with the importation of Negroes.”

  Rutledge, On August 21, in arguing against a prohibition or tax on the import of slaves, Farrand, Records, Vol. II, 364 “The true question at present is whether the southern states shall or shall not be parties to the Union. If the northern states consult their interest, they will not oppose the increase of slaves which will increase the commodities of which they will become the carriers.”

  The next day, Farrand, Records, Vol. II, 373, he said: “If the Convention thinks that North Carolina, South Carolina, and Georgia will ever agree to the plan, unless their right to import slaves be untouched, the expectation is vain. The people of those states will never be such fools as to give up so important an interest.”

  Madison, at the Virginia ratifying convention: The southern states would not have entered into the union of America, without the temporary permission of that [slave] trade. Farrand, Records, Vol. III, 325–26

  Pinckney, In S. C. House of Representatives, Farrand, Records, Vol. III, 252–5, describes the bargain to continue the slave trade for twenty years. “Show us some period,” said the members from the eastern states, “when it may be in our power to put a stop, if we please, to the importation of this weakness [slaves] and we will endeavor, for your convenience, to restrain the religious and political prejudices of our people.”

  Farrand, Recor
ds, Vol. III, 165, “all good men wish the entire abolition of slavery as soon as it can take place with safety to the public, and for the lasting good of the present race of slaves. The only possible step that could be taken toward it by the convention was to fix a period after which they should not be imported.”

  James Wilson in Pennsylvania Convention, Farrand, Records, Vol. III, 160–61. “I consider this as laying the foundation for banishing slavery out of this country; and the period is more distant than I wish, yet it will produce the same kind of gradual change that was pursued in Pennsylvania.”

  Madison to Jefferson, Farrand, Records, Vol. III, 131, 135, “Some contended for an unlimited power over trade, including exports as well as imports, and over slaves, as well as other imports.”

  45. Freehling, Road to Disunion, 147–53. Additional influence of the threefifths rule is outlined in Dumond, Antislavery, 69–75

  46. If the “supermajority” principle had been adopted and applied to the commerce power, it would have prevented the adoption of antislavery legislation of any type. See George Mason’s explanation, Farrand, Records, Vol. III, 211–13. Charles Cotesworth Pinckney had moved to require a twothirds vote on statutes regulating interstate and foreign commerce (navigation acts). He believed that the different interests of the northern states would lead them to adopt laws which disfavored the South. But his colleague, General Charles Pinckney, disagreed. He viewed the grant of power to regulate foreign commerce as a “pure concession” on the part of the southern states, whose “true interest” was to have no regulation of commerce, “but considering the loss brought on the commerce of the eastern states by the Revolution, their liberal conduct toward the views of South Carolina, [Farrand says this means the permission to import slaves. He considered this debate an expression of the “understanding on the two subjects of navigation and slavery”] and the interests the weak southern states had in being united with the strong eastern states,” he thought it proper that no fetters should be imposed on the power of making commercial regulations, and that his constituents, though prejudiced against the eastern states, would be reconciled to this liberality. He had himself, he said, prejudices against the eastern states before he came here, but would acknowledge that he had found them as liberal and candid as any men whatever. Immediately after the proposal for a two-thirds vote on regulation of congress was defeated, Delegate Butler moved the adoption of the fugitive slave clause, and it was approved unanimously without debate (Farrand, Records, Vol. II, 446, 453) suggesting that it was indeed a part of a compromise reached off of the convention floor.

  47. Paul Finkelman, “Slavery and the Constitutional Convention,” 188–225, 190–192, lists five clauses directly supporting slavery and ten clauses which do so indirectly in addition to restraints arising from the limited powers of the federal government.

  48. General Pinckney explained the self interest of Virginia, Farrand, Records, Vol. II, 371–72. “General Pinckney declared it to be his firm opinion that if himself & all his colleagues were to sign the Constitution & use their personal influence, it would be of no avail toward obtaining the assent of their constituents. S. Carolina & Georgia cannot do without slaves. He contended that the importation of slaves would be fore the interest of the whole Union. The more slaves, the more produce to employ the carrying trade. The more consumption also, and the more of this, the more of revenue for the common treasury.”

  49. Thomas P. Abernathy, Western Lands and the American Revolution, (New York: Russell and Russell, 1937)

  50. See Monroe’s report, Chapter 9

  51. Finkelman, “Slavery and Bondage” in Williams, Northwest Ordinance, 88n4

  52. Charles A. Beard, An Economic Interpretation of the Constitution (New York: MacMillan Co., 1913) 29. Beard’s list of considerations included, “the South had many men who were rich in property other than slaves, and it was this type, rather than the slave-holding planter as such which was represented at the convention” (at 30). This point was factually incorrect. See Nevins, American States. Beard incorrectly assumed that the wealth of the southern political leadership was not based on slavery, nor did he explain that the “overbalancing considerations” included protection of slavery in the southwestern territories. In addition Beard disregarded the fact that slaves increased land values thus enhancing the wealth of the southern economy. Henretta, “Wealth and Social Structure”

  53. Jensen, Articles of Confederation, 111–24, discusses the extensive migration south during this period.

  54. Morgan, American Slavery, 309. “No white person was killed in a slave rebellion in colonial Virginia”

  55. Ibid. 265

  56. Ibid. 250–70

  57. Jack P. Greene, “The Constitution of 1787 and the Question of Southern Distinctiveness,” in Robert J. Haws, Ed., The South’s Role in the Creation of the Bill of Rights (Jackson: University Press of MS, 1991) 28

  58. The French government resolved the student unrest which had ground Paris to a halt in 1968, by designating a university—Vincennes—to emphasize the concerns of the “radicals.” They flocked to “their” university, thereby leaving the rest of the universities without a radical presence.

  59. Thus both Dane and Carrington reported proudly that the Northwest Ordinance would send Massachusetts and Connecticut men to the west, and provide a buffer for the northern lands of Virginia. MacLeod, Slavery, Race, 144–45, notes that more than one thousand Quakers from South Carolina left for Ohio between 1805 and 1819.

  60. Lynd, “Compromise,” in Class Conflict, 212, comes close to this point at the close of his essay. “Finally, why did the Congress and the Convention act so differently? The evidence suggests that the motives which moved men in making ordinance and constitution were essentially the same. The drafters at Philadelphia were troubled about slavery, as were the legislators in New York. But in Congress, southerners who sought to guarantee slave prospect and to make possible a stronger southern voice in Congress saw northwest settlement, even without slavery, as a means to these ends.”

  61. Monroe, Writings, Vol. III, p. 253, June 15, 1801

  62. Jefferson, “Letter to J. Monroe, Nov. 24, 1801,” in Ford, Works, Vol. 9, 317. Jefferson urged consideration of the West Indies and Africa, rather than the west.

  63. “At present however, St. Louis is the most flourishing village of the Spaniards in the upper part of the Mississippi, and it has been greatly advanced by the people who abandoned the American side: to that they were induced partly by the oppression they suffered, and partly by the fear of losing their slaves, which they had been taught to believe would be all set free on the establishment of the American government.…Much pains had indeed been taken to inculcate that belief (particularly by a Mr. Morgan from New Jersey), and a general desertion of the country had like to have been the consequence. The construction that was given to that part of the ordinance which declares there shall be neither slavery nor involuntary servitude was that it did not go to the emancipation of the slaves they were in possession of, and had obtained under the laws by which they had formerly been governed, but was intended simply to prevent the introduction of others. In this construction I hope the intentions of Congress have not been misunderstood, and the apprehensions of the people were quieted by it; but the circumstances that slaves cannot be introduced, will prevent many people from returning who earnestly wish to return, both from a dislike to the Spanish government, and that the country itself is much less desirable than on the American side—could they be allowed to bring back with them, all those who retired from that cause would return to a man.” “Report of Governor St. Clair to the Secretary of State, Feb. 10, 1791,” Carter, Territorial Papers, Vol. II 332–33

  64. Fehrenbacher, Slaveholding Republic, 424n11

  65. 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. 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 (Garland, 1987) 93–112. On the general approach of the Federalists to ratification, see Rakove, Original Meanings, 94–130

  66. The Northwest Ordinance constituted a trial of many provisions which were later incorporated into the Bill of Rights, which tended to protect southern interests. The South Carolinians failed, however, in their effort to limit federal powers by including the word “expressly” in the tenth amendment. This proposal would have further protected slavery. See James W. Ely Jr., “The Good Old Cause: The Ratification of the Constitution and Bill of Rights in South Carolina” in Robert J. Haws, Ed., The South’s Role in the Creation of the Bill of Rights (Jackson: University Press of MS, 1991) 101–124

  67. Some southern delegates may have harbored the hope that the antislavery provision of the Northwest Ordinance was unconstitutional, although there was no practical mechanism under the Articles to test the issue. Madison, in the Federalist 38, 248–9), described the Northwest Ordinance and other actions, “All this has been done; and without the least color of constitutional authority.”

  68. “John Adams to Colonel Smith, Dec. 26, 1787,” John P. Kaminski and Gaspare J. Saldino, Eds., XVI The Documentary History of the Ratification of the Constitution: Commentaries on the Constitution, Public and Private, Vol. 4, 1 February–31 March, 1788 (State Historical Society of Wisconsin, 1986). In the nineteenth century, the same view of the ordinance and the Constitution was held in the northwest territory. Onuf, Statehood and Union, 133–41. Daniel Webster, in his defense of the Fugitive Slave Act of 1850, stated that the sentiments of both North and South underlying both the Constitution and the ordinance were the same. John C. Rives, Ed., “Appendix” The Congressional Globe, Vol. 22, 1849-1850, (Washington, D.C., 1854–73) 271.