2

ANTI-SLAVERY CLAUSE IN ORDINANCE OF 1787.

force, that these were the precedents upon which the greater part of it rested, and particularly of those clauses in the ordinance in the nature of a Bill of Rights.1

Among the most active friends of the bill was Manassah Cutler, a clergyman, who had exerted himself in forwarding the plans of the Ohio Company, had visited New England to help organize it and to stimulate emigration, and had come to New York to win it friends among the members of Congress. It has been claimed that to Doctor Cutler is due the anti-slavery clause finally inserted in the ordinance. On the eleventh of July, the committee submitted its report, but the draft did not contain the provision against slavery. It will be remembered that in the first project for organizing a State in the Ohio country, in 1783, its New England founders had inserted a clause forbidding slavery.2 There is no doubt that anti-slavery opinions were held generally by the men and women of New England who intended to make the Ohio country their home, as soon as Congress would give it a civil organization. If Doctor Cutler had advocated the prohibition of slavery, it would seem that an anti-slavery clause would have been inserted in the committee's draft. His support of slavery, a few years later, when a member of Congress from Massachusetts, hints that he may not have been opposed to it in 1787.3

The evidence of the authorship of the prohibitory clause confirms the claim of Dane that he drew it, almost in the language in which it passed, though with little hope, at

1 The clause from the State constitutions which were precedents are reprinted by Barrett, 57-60-65. They are from the constitutions of Massachusetts, Virginia, Pennsylvania, Maryland, North Carolina and Georgia, and especially the laws of Massachusetts. Act of February 6, 1784.

2 Barrett, 6-8.

3 Barrett, 76.

SLAVERY IN THE NORTHWEST.

3

first, that it would be approved.1 He moved the adoption of the article and it was agreed to without opposition. The proviso for the rendition of fugitive slaves was added at the suggestion of Rufus King, who had first suggested it in 1785. On the thirteenth of July, when the ordinance passed Congress, in New York, the Federal Convention was engaged, in Philadelphia in determining the basis of representation, and whether or not it should include slaves. It was probably not without some mutual understanding that Congress and the Convention were turning their thoughts to the same great question about the same time, for several members of the Convention were members of Congress and were informed of its proceedings. A motive for excluding slavery from the Northwest Territory was not hard to find. The Ohio river nearly equally divided the western country. The land cessions from the States gave Congress at least collateral security for its credit and removed much anxiety respecting the ultimate payment of the public debt. The climate north of the Ohio was known to be unfavorable to the extensive production of southern staples, indigo and tobacco; it was believed that these could be profitably produced only by slave labor; and therefore if this was forbidden in the new region, the southern States would have, practically, a monopoly of these two industries. Then, too, migration into the Northwest would strengthen the national defenses on the frontier and tend to secure the control of the navigation of the Mississippi for the United States. Whatever hostility to anti-slavery provisions might have been entertained by southern members of Congress at this time, it was practically quieted by the conviction of the absolute gains to the country which an early and vigorous settle

1 Dane to Rufus King, July 16, 1787; Barrett, 76. 2 Elliot, V, 308.

4

THE CLAUSE AS A PRECEDENT.

ment of the Northwest would give. Moreover, as the clause was coupled with a proviso for the return of fugitive slaves, it possessed a compensatory element of no small importance. As the fugitive slave clause had been inserted in the plan in 1785, the matter when finally it came up in Congress had all the weight practically of an established precedent.1

Had the Constitution remained to this day exactly as it went forth to Congress and the States in 1787, the northwest ordinance would have passed into oblivion long ago. Even its fundamental importance, as the basis of later territorial organization, could not have given it the important place in our constitutional history which it attained. Because it was the first national act limiting slavery, and its anti-slavery clause was adopted word for word in the organic acts of all territories organized from Pennsylvania to the Pacific, and, when these were admitted as States, was copied into their constitutions; and because nearly eighty years after its adoption, its anti-slavery clause became the Thirteenth Amendment to the Constitution of the United States, its importance is not secondary to any slavery provision contemporaneous with it in the Constitution.

Its importance is in no wise diminished by the interpretation which Madison put upon it in the Federalist, that in proceeding to form new States, to erect temporary governments, to appoint their officers and to prescribe the conditions on which these new States should be admitted into the confederacy, Congress had proceeded "without the least color of constitutional authority."2 Nor is its importance diminished by the fact that Chief-Justice Taney

1 Barrett, 79-80.

2 No. XXXVIII. It appeared in the New York Packet, January 15, 1788

RICHARD HENRY LEE.

5

in his opinion in the Dred Scott case, seventy years later, sustained Madison's views. The great ordinance originated at the time of the Constitution and almost with it, and though, later it was declared unconstitutional, its anti-slavery provision had already received public approval for three generations and had come to be ranked among the accepted precedents in American government. When the Constitution, on the twentieth of September,2 was presented to Congress, opposition there was already well organized. At its head was Richard Henry Lee of Virginia, whose chief objection was the evident purpose of the new plan to organize a national instead of a federal government. He left nothing within his power unturned to defeat it. In Congress he was an obstructionist, pleading for a Bill of Rights; out of Congress, he was an agitator and pamphleteer, attacking the plan as a violation of the principles of republican government. His conduct, whether in refusing to accept an appointment to the Federal Convention or in his persistent and almost passionate hostility to the Constitution was no compliment to his sagacity as a statesman. Lee was supported in Congress by several members, who carried home the spirit of their opposition, and in their own States became its head and front. The consent which Congress had given to the calling of the Federal Convention was a sufficient answer to any objections on its part, now, to submit the plan to the States; and happily the opposition was in the minority. The friends of the plan in Congress, chief of whom was Madison, were impatient for Congress to express its formal approval and refer the Constitution to the legislatures.

119 Howard, 447. For an account of the case of Dred Scott see pp. 536-551; and for an account of the adoption of the thirteenth amendment, see Vol. III.

2 1787.

6

THE ANTI-FEDERALISTS.

They wished a unanimous submission, just as the friends of the Constitution had wished unanimous approval by the States in convention.

Melanchton Smith of New York, and his colleagues, were inflexible that, in submitting the plan, Congress should use no words of approval; and in this spirit,—the Anti-Federalists, consenting to unanimity, and the Federalists, that the Constitution should go forth without words of approval, on the twenty-eighth of the month, Congress unanimously referred the Constitution to the legislatures of the several States, to be by them submitted to conventions, chosen expressly for the purpose, as the Philadelphia meeting had advised.1 This Convention, composed of the first characters in the country; assembling with closed doors and at a time when the fortunes of the Confederation were at their lowest ebb, had awakened highest expectation among all ranks of people. Washington and Franklin possessed a world-wide reputation; and other members, no less zealous for political reforms, were, without exception, the leading men of their States. The long labor in which they engaged had of itself awakened wide interest in the result. What thought the public gave to the Convention seems to have been favorable and confiding; it was convinced that affairs could not be worse managed under any government which the Convention was likely to propose than they had been under the confederation, an efficient government on republican principles must be established.2

But there is no evidence that the people expected a plan

1 Journals of Congress, September 28, 1787. For the resolution of Congress, submitting the Constitution, and the circular letter of Secretary, transmitting it to the governors, see Documentary History, I, 22-23.

2 Carrington to Jefferson, June 9, 1787, and to Madison, June 13.