CHAPTER 12
CEMENTING THE BARGAIN: RATIFICATION BY VIRGINIA AND THE FIRST CONGRESS
1. If it were urgent, the trip could be completed more quickly. In 1775, news of the battles at Lexington and Concord, which opened the Revolutionary War, took seventeen hours to travel from New York to Philadelphia, arriving at 10 a.m. on April 21. David Hackett Fischer, Paul Revere’s Ride (Oxford University Press, 1994) 271
2. Bowen, Miracle at Philadelphia, 186; Forrest McDonald, E Pluribus Unum: The Formation of the American Republic 1776 through 1790 (Indianapolis: Liberty Fund Inc., 1979) 285, mentions the weather but does not give it the influence that Bowen suggests. Farrand, The Framing of the Constitution, 104, also spent a paragraph about how the weather changed on July 12. Hutson, Supplement to Farrand, 325 amassed considerable detail about the weather during the convention.
3. Farrand, Records, Vol. II, 8
4. Ibid. 13–14
5. Massachusetts was divided, and New York was absent.
6. Farrand, Records, Vol. II, 18
7. Ibid.
8. Ibid.
9. Ibid. 19
10. Ibid.
11. Ibid. at 19–20, July 16. “On the morning following, before the hour of the Convention, a number of the members from the larger states, by common agreement, met for the purpose of consulting on the proper steps to be taken in consequence of the vote in favor of an equal representation in the Senate, and the apparent inflexibility of the smaller states on that
point—several members from the latter states also attended. The time was wasted in vague conversation on the subject, without any specific proposition or agreement. It appeared indeed that the opinion of the members who disliked the equality of votes differed so much as to the importance of that point, and as to the policy of risking a failure of any general act of the Convention by inflexibly opposing it. Several of them supposing that no good government could or would be built on that foundation, and that as a division of the Convention into two opinions was unavoidable, it would be better that the side comprising the principal states and a majority of the people of America should propose a scheme of government to the states, than that a scheme should be proposed by the other side, would have concurred in a firm opposition to the smaller states, and in a separate recommendation, if eventually necessary. Others seemed more inclined to yield to the smaller states, and to concur in such an act however imperfect and exceptionable, as might be agreed on by the Convention as a body, though decided by a bare majority of states and by a minority of the people of the United States. It is probable that the result of this consultation satisfied the smaller states that they had nothing to apprehend from a Union of the larger, in any plan whatever against the equality of votes in the Senate.”
12. Banning, Sacred Fire, 157
13. Bowen, Miracle at Philadelphia, 200–204, neatly summarizes the discussions of slavery. See also, Wiecek, Antislavery Constitutionalism, 62–83; Fehrenbacher, Slaveholding Republic, 29–37
14. Farrand, Records, Vol. II, 364
15. Ibid.
16. Ibid.
17. Ibid.
18. Farrand, Records, Vol. II, 369–70
19. Mason, Elsworth, and Pinckney comments Ibid. 370-1
20. Ibid. 374–5
21. Ibid. 400
22. Ibid. 409
23. Ibid. 415
24. Ibid. 443
25. This was the anti-Somerset provision discussed in Chapter 8.
26. Farrand, Records, Vol. II, 443. See Finkelman, Imperfect Union, 9–40. Finkelman’s explanation-—that pro-slavery delegates believed the issue was already decided in their favor—seems unlikely in light of their sensitivity to the question, which he discusses fully at 28–32, 34–36, 40
27. Art. IV, Sec. 2
28. Madison’s notes, Farrand, Records, Vol. II, 443
“Art. XIV was taken up. (reading ‘The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.’) Gen. Pinckney was not satisfied with it. He seemed to wish some provision should be included in favor of property in slaves. On the question, Ayes 9, Noes 1 (SC), divided 1 (Geo.)” This exchange suggests that to Pinckney, the “stripped down” privileges and immunities clause did deprive the citizens of the slave states of the right to take their slave property to non-slave states and to take them home again. George Mason of Virginia noted that the protections for “removing their property” of Article 4 of the Confederation had been taken away by the Constitution, Farrand, Records, Vol. II, 637
The Confederate Constitution corrected this “error” by reestablishing the privileges and immunities clause from the Articles, and strengthening the fugitive slave clause. Finkelman, Imperfect Union, 21. The Confederacy was fighting Somerset’s ghost as late as 1861, ninety years after Lord Mansfield’s decision.
29. Farrand, Records, Vol. II, 443
30. Ibid. 446. Madison, in debate in VA convention, June 17, 1788, Farrand, Records, Vol. III, 324–5, regarding Art. 1, Sec. 9: “I should conceive this clause to be impolitic, if it were one of those things which could be excluded without encountering greater evils. The southern states would not have entered into the union of America without the temporary permission of that trade. And if they were excluded from the union, the consequences might be dreadful to them and to us.…No power is given to the general government to interpose with respect to the property in slaves now held by the states.…They cannot prevent the importation of slaves for twenty years; but after that period they can. The gentlemen from South Carolina and Georgia argued in this manner: ‘We have now liberty to import this species of property, and much of the property now possessed has been purchased or otherwise acquired in contemplation of improving it by the assistance of imported slaves. What would be the consequence of hindering us from it? The slaves of Virginia would rise in value, and we would be obliged to go to your markets.’”
31. Farrand, Records, Vol. II, 454. Butler’s initial motion included the word “justly.” That was later removed.
32. Art. IV, Sec. 2
33. “Madison’s speech to the Virginia ratifying convention, June 17, 1788,” Farrand, Records, Vol. III, 325: “Another clause secures to us that property which we now possess. At present, if any slave elopes to any of those states where slaves are free, he becomes emancipated by their laws. For the laws of the states are uncharitable to one another in this respect. But [the fugitive slave clause] was expressly inserted to enable owners of slaves to reclaim them. This is a better security than any that now exist.”
34. See Wiecek, Antislavery Constitutionalism, 54, quoting New Jersey Statute of 1786, which prohibited the foreign slave trade, both to discontinue “the barbarous custom of bringing the unoffending Africans from their native country and connections into a state of slavery,” and, “to afford ample support to such of the community as depend upon their labour for their daily subsistence,” the state should not increase the pool of slave labor. Owners seeking to emancipate slaves in NJ were required to guarantee that they would not become public charges.
35. Finkelman, Imperfect Union, 146–180
36. Farrand, Records, Vol. II, 559. No one mentioned that the concept of an “unamendable” provision in the Constitution was inconsistent with the principle of the Declaration of Independence concerning the right of the people to “alter or abolish” a form of government that no longer served their interests.
37. His diary is highly detailed about some matters as befits a scientific approach of one who also had a eye for beautiful and engaging women, but he was vague about his role with respect to the Northwest Ordinance. He left New York on the evening of July 10, en route to Philadelphia. After reporting a dinner with fifteen different sorts of wine, he added this paragraph: “As Congress was now engaging in settling the form of government for the federal territory, for which a bill had been prepared, and a copy sent to me, with leave to make remarks and propose amendments, and which I had taken the liberty to remark u
pon, and to propose several amendments, I thought this the most favorable opportunity to go on to Philadelphia. Accordingly, after I had returned the bill with my observations, I set out at seven o’clock.” Cutler, Journals, 242
Barrett, Evolution of the Ordinance, 71, questioned which bill Cutler saw; the May 10 version as amended by July 9, or the version introduced on July 11, which contained significant changes and additions? On this turns part of the claim that Cutler was responsible for the antislavery article. His second diary entry discussed below, makes clear that he did not see the July 11 version.
Cutler returned to New York on the evening of July 17, on July 18 renewed his negotiations with Congress, and on July 19 called on some members very early in the morning (Cutler, Journals, 292–3) and: “Was furnished with the ordinance establishing a government in the western federal territory. It is in a degree new modeled. The amendments I proposed have all been made except one, and that is better qualified. It was that we should not be subject to continental taxation until we were entitled to full representation in Congress. This could not be fully obtained, for it was considered in Congress as offering a premium to emigrants. They have granted us representation, with right of debating, but not of voting, upon our being first subject to taxation.”
The language which accomplished this appears in the document which was presented by the committee on July 11. This document had not been seen by Cutler, or he would not have remarked on the new provision regarding non-voting-delegate status. The provision for a non-voting delegate appears in Jefferson’s 1784 land ordinance. Even if Cutler saw the ordinance as introduced on July 11, the day after he left, it would not have contained the antislavery provision. Dane had decided not to include it in the July 11 presentation. William Frederick Poole, The Ordinance of 1787 and Dr. Manasseh Cutler as an Agent in its Formation (Cambridge University Press, 1876) 26–7. For a similar conclusion, see Finkelman, “Slavery and Bondage” in Williams, Northwest Ordinance, 68–70. Cutler’s second entry also suggests that his proposed amendments were “technical” in nature, rather than philosophical, as befits a person preparing to open the wilderness. Several amendments fit this suggestion, but not the antislavery provision. Given the extensive detail about many matters in Cutler’s diary—including a description of how he “leaned on” the Congress to grant the Ohio Company’s requests by threatening to buy land still held by some of the northern states instead—it is inconceivable that he would not have discussed his proposed amendments more fully if they had encompassed the massive changes which appear in the July 11 document, even aside from the antislavery clause. Cutler, Journals, Vol. 2, 295–305
38. Smith, Life and Public Services of Arthur Sinclair, Vol. 1,128–30. Citing and quoting Cutler.
39. Lynd concludes that this shows that the makers of both the ordinance and Constitution were ready to compromise the concept that all men are equal. Lynd, “Compromise,” in Class Conflict, 213. But that principle had been compromised in 1774. In August of 1788, at the last session of the Continental Congress, a committee of Hamilton, Sedwick, and Madison reported on efforts to persuade Spain to return fugitive slaves who had escaped from Georgia. The report was acted upon on August 26. JCC Vol. XXIV, 188n3; Secret Journals of Congress IV, 439–42 (1937). The matter appeared to be handled as a routine diplomatic problem.
40. See the discussion in Chapter 9
41. Smith, Letters of Delegates, Vol. 8, 660
42. Carter, Territorial Papers , Vol. II 172–73
43. In the debates surrounding the Missouri Compromise in 1820, the actions of the Virginia legislature in supporting the Northwest Ordinance and its antislavery character were embarrassing to southern supporters of states’ rights. On January 28, 1820, Rep. Smythe of Virginia discussed the ordinance, noting that although the South had voted for the ordinance in 1787, it had voted against the antislavery clause in both 1784 and 1785. He did not mention that Virginia had accepted the Northwest Ordinance by changing the deed of cession to conform to its terms. Annals of the 16th Congress, Jan. 28, 1820, 1002
44. Justice Curtis would make a point of this ratification in his dissent in Dred Scott, fifty-eight years later.
45. 1 Stat. L. 123 (May 26, 1790.), 2 Annals of Congress 2226–7.
46. 1 Annals of Congress, 2208
47. 1 Annals of Congress, 2211. The obscurity may have led historian David Brion Davis to an incomplete statement in Problem of Slavery, 153: “In 1790, Congress omitted any mention of slavery when it enacted provisions for the territorial government of the southwest.” The incorporation by reference to the acceptance of the deed of session may not constitute a “mention” of slavery, but it had the same effect.
48. 1 Annals of Congress, 1477
49. Wiecek, Antislavery Constitutionalism, 94–5
50. Freehling, Road to Disunion, 536–65
51. The land area of the United States in 1790 was 864,746 square miles.
CHAPTER 13
HOW THEN SHOULD WE VIEW THE FOUNDING FATHERS?
1. Onuf, Statehood and Union, 133–52
2. On narrow enforcement, See Fehrenbacher, Slaveholding Republic, 256–8; Finkelman, “Slavery and Bondage” in Williams, Northwest Ordinance, 61; Wiecek, Antislavery Constitutionalism, 108–109. In 1857, Chief Justice Taney, thinking he would resolve an impending conflict between North and South, held in Dred Scott v. Sanford that the Northwest Ordinance had no effect on slaves who had entered the territory with their masters, and that blacks had no rights that federal law recognized. See Ferenbacher, Dred Scott Case, 322–34
3. Washburne, Sketch of Edward Coles
4. See Eugene Berwanger, The Frontier Against Slavery: Western Anti-Negro Prejudice and the Slavery Extension Controversy, (University of Illinois Press, 1967) 8; Roger L. Ransom, Conflict and Compromise: The Political Economy of Slavery, and the American Civil War (Cambridge University Press)22–27. See also, Dumond, Antislavery
5. See David Herbert Donald, Lincoln (New York: Simon and Schuster, 1995) 23–4
6. E. B. Washburne, Sketch of Edward Coles, 21–31
7. Alexis de Tocqueville, Democracy in America, Vol. 1 (New York: Vintage Books, 1990) 361
8. Dred Scott v. Sandford, 60 U.S. 691, 15 L. Ed. 691(1857). For a full discussion, see Fehrenbacher, Dred Scott Case
9. Dred Scott v. Sandford, 60 U.S. 691, 15 L. Ed. 691 at 701-02(1857).
10. Associate Justices Campbell and Daniel supporting Taney’s opinion, did refer to Somerset in a dismissive tone. See Fehrenbacher, Dred Scott Case, 396–400
11. Freehling. Road to Disunion, Part VI
12. Swayne Wagner, The Ordinance of 1787 and the War of 1861 (New York: C. B. Burgoyne, 1892) 79. Address before the New York Commandery of the Military Order of the Loyal Legion
13. Alan T. Nolan, The Iron Brigade: A Military History (Bloomington: Indiana University Press, 1961). James M. McPherson, Battle Cry of Freedom: The Civil War Era (New York: Ballantine Books,1988) 654–63; James M. McPherson, What They Fought For: 1861–1865 (New York: Doubleday, 1995)
14. Richard Moe, The Last Full Measure: The Life and Death of the First Minnesota Volunteers (New York: Henry Holt & Co, 1993) 258–97; James J. McPherson, Battle Cry of Freedom: The Civil War Era (New York: Ballentine Books, 1988) 660
15. Edward C. Longacre, Custer and His Wolverines: The Michigan Cavalry Brigade, 1861–1865 (Conshohocken, PA: Combined Pub. Co., 1997) 151–3
16. Jean Edward Smith, Grant, (New York: Simon & Schuster, 2001) 21–2
17. http://americancivilwar.com/colored/histofcoloredtroops.html
18. Hubert H. Humphrey, The Education of a Public Man (Doubleday, 1976) 459. The speech was given to the Democratic Party Convention in Chicago, July 14, 1948 (458). This was 161 years and one day after the adoption of the Northwest Ordinance, and the 159th anniversary of the fall of the Bastille in Paris.
19. Charles Whalen and Barbara Whalen, The Longest Debate: A Legislative History of the 1964 Civil Rights Act (Washington, DC: Seven Lock
s Press, 1985).
20. Griggs v. Duke Power Co., 401 U.S. 424, 429-430 (1971). The Chief Justice held that “The objective of Congress in the enactment of Title VII is plain from the language of the statute. It was to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees. Under the Act, practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to ‘freeze’ the status quo of prior discriminatory employment practices.”
21. The plan reads: Philadelphia, 26 October, 1789. A Plan for improving the condition of the Free Blacks. The business relative to Free Blacks shall be transacted by a committee of twenty-four persons, annually elected by ballot, at the meeting of this society in the month called April; and in order to perform the different services, with expedition, regularity, and energy, this committee shall resolve itself into the following sub-committees, viz. I.) A committee of inspection, who shall superintend the morals, general conduct, and ordinary situation of the Free Negroes, and afford them advice and instruction, protection from wrongs, and other friendly offices. II.) A committee of guardians, who shall place out children and young people with suitable persons, that they may (during a moderate time of apprenticeship, or servitude) learn some trade or other business of subsistence. The committee may effect this partly by a persuasive influence on parents, and the persons concerned; and partly by cooperating with the laws which are, or may be enacted for this, and similar purposes; in forming contracts on these occasions, the committee shall secure to the society, as far as may be practicable, the right of guardianship, over the persons so bound. III.) A committee of education, who shall superintend the school-instruction of the children, and youth of the Free Blacks; they may either influence them to attend regularly the schools already established in this city, or form others with this view; they shall in either case provide that the pupils may receive such learning as is necessary for their future situation in life; and especially a deep impression of the most important, and generally acknowledged, moral and religious principles. They shall also procure and preserve a regular record of the marriages, births, and manumissions of all Free Blacks. IV.) A committee of employ, who shall endeavour to procure constant employment for those Free Negroes who are able to work, as the want of this would occasion poverty, idleness, and many vicious habits. This committee will, by sedulous enquiry, be enabled to find common labour for a great number; they will also provide that such as indicate proper talents may learn various trades, which may be done by prevailing upon them to bind themselves for such a term of years as shall compensate their masters for the expense and trouble of instruction and maintenance. The committee may attempt the institution of some useful and simple manufacturers, which require but little skill, and also may assist in commencing business, such as appear to be qualified for it.
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