Ohio History Journal

THE ORDINANCE OF JULY 13TH, 1787.

 

THE intrinsic merits of that organic law which was enacted

by the old Continental Congress on the 13th of July, 1787,

"for the Government of the Territory Northwest of the river

Ohio," have been so fully discussed and are so well under-

stood that any attempt in that direction would be little more

than a repetition of views already familiar to an intelligent

audience.  Its merits can now be measured by its fruits.

Results are its monument and its highest eulogy.

It is not surprising that as a century is rounded up, the

thoughtful inquirer should look back and endeavor to trace

the beginnings and look up the extrinsic circumstances as

well as personalities that were connected with such an enact-

ment.

So far as organic law is concerned we are sitting under

"vines and fig trees," are "eating of the oliveyards and vine-

yards that we planted not." Who were the planters? Why

was the planting done?

In pursuing this inquiry we are met with the difficulty

arising from  a lack of authentic historic material.  One

hundred years ago the proceedings of legislative bodies were

not kept with that plethora of discussion, and detail of

motions, references and reports that distinguish modern Con-

gressional Records. The wasting processes of a century have

destroyed valuable family papers, and memories of early

actors and listeners have faded out, so that fragments of fact,

incident and history must be gathered up and carefully applied.

Still the gleaner must be content with a gleaner's share of the

harvest.

The passage of the ordinance at the time has one peculiar

characteristic that is worthy of notice. That is the leading

fact that it stands out in history as an isolated effort on the

part of its authors to forecast a complete system of govern-

 

1Read before the Ohio Archaeological and Historical Society at its Third

Annual Meeting, February 23, 1887.

10

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The Ordinance of July 13th, 1787.      11

ment and project it over a vast territory in advance of its

actual occupation by future inhabitants.  When the May-

flower passengers neared their expected haven of rest, they

solemnly agreed to observe certain fundamental principles of

a future government; but those principles were not firmly

and enduringly fixed upon Massachusetts soil until the Con-

stitution of 1780. It required one hundred and sixty years

to reach that advanced stage of free institutions which was

foreshadowed by the Mayflower declaration. But the Ordi-

nance of '87 was thrown forward into a wilderness, carrying

with it not only organic principles, but embracing the details

of a governmental autonomy that has stood the test of a cen-

tury. This peculiarity is worthy of notice, because the very

fact that such an organic law was forecast, pre-arranged, and

pre-ordained by competent authority, prior to territorial occu-

pation assists us in the inquiry as to its origin, and helps to

explain the fact that it was largely the work of pioneer settlers

seeking homes under its protection, rather than of wise states-

men who had no such motive to guide them.

There were two methods by which the progress of civiliza-

tion moved westward from the Atlantic base. One was by

the individual enterprise of the pioneer venturing out either

alone or with a few neighbors and taking possession of the

wilderness in advance of civil institutions. The other was a

thoroughly organized system of occupations, with pre-arranged

guaranties of protection based upon law and order and com-

bining all the essential principles upon which our Republic is

founded. Now it is necessary to keep distinctly in mind that

there was a systematic and well organized plan for taking

possession of the Ohio Valley and the Northwest in the in-

terest of an advancing Christian civilization, that the men

engaged in this effort were not mere land buyers or home

seekers, but that from its incipiency the Governmental idea

was part of the plan.  They intended to found a Stale. This

original intendment bore fruit in the Ordinance of July 13th,

1787.

The journals of Congress, although extremely meagre in

details present some facts of great value in tracing out the

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12     Ohio Archaeological and Historical Quarterly.

beginnings of a public policy in regard to the Northwest

Territory. Even before its acquisition under the terms of

the treaty of peace in 1783 the policy of "independent

states" had been announced.

After all claims of particular States had been quieted and

it could be treated as common property it became a blank

sheet upon which the ideas and policies then prevailing in the

old thirteen States could be indelibly stamped. There was

a sufficient divergence then as now between the Eastern and

Southern States to give rise to controversy. In the land

system, range, town and section prevailed against "indis-

criminate locations."  The transition from extreme colonial

and state rights to a centralized power can be traced in con-

nection with this "common property."  Social and industrial

policies came into conflict.  The system of forced labor

which had been universal in the colonies laid claim to this

new and vast area. Its advocates on every trial of legislative

strength had triumphed until it was disposed of finally by

the ordinance of July 13, 1787. Subsequent interest in the

ordinance itself has been directed largely to the problem

that of the eight States voting for it five were slave States

and the ordinance contained a positive prohibition of a system

of labor which at that time was zealously guarded as the

basis of their own prosperity.

The subject was not a new one in Congress. More than

once distinct action had been taken, and every slave State

had resisted any efforts to exclude slavery from new territory.

Even a prospective prohibition had been denied when the

Resolutions of April 23d, 1784, were adopted. Subsequently

a direct anti-slavery amendment was laid over without action

and never called up. As late as the 9th of May, 1787, about

two months before the passage of the present anti-slavery

ordinance, a committee having a majority from the free States

reported an ordinance for the government of the Northwest

Territory that was silent on that subject, showing plainly

enough that all effort at prohibition had been abandoned.

What valid reason then was there that under the leader-

ship of Virginia, the Carolinas and Georgia with Delaware

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The Ordinance of July 13th, 1787.       13

should quietly give up that which they held safely in their

own hands, and which had been virtually surrendered to them

by their opponents? Why did Virginia lead off in discard-

ing her own institutions and cordially adopt those which pre-

vailed in Massachusetts? Why were New England ideas and

policies enduringly stamped upon this vast interior-the very

heart of the great Republic--at a time when New England

had but one voice out of eight in deciding that result?

I ask your indulgence in an effort to answer these interest-

ing questions.

In the beginning of the Revolutionary struggle Massachu-

setts was entitled to leadership in the army. She yielded it

to Virginia. When Washington came to the front as Com-

mander-in-Chief, that front was in Massachusetts.  He was

there brought into close personal contact with her citizens and

her soldiers. His first success was the evacuation of Boston

by the enemy, as a result of the prompt, energetic, and de-

cisive support rendered to his plans by a citizen soldiery. His

army was destitute of ammunition and supplies. That want

was supplied by the bold privateering of Whipple, Manly,

Tucker, and other Yankee seamen. His disasters on Long

Island were offset by the skill and daring that saved his army

in a retreat requiring water passages which were conducted

by the sea-faring men of New England. When driven from

the "Jerseys" and forced across the Delaware, he decided

upon that bold effort to inspire confidence by an attack upon

his enemies in mid-winter; it was Glover's Brigade of Mar-

blehead fishermen that guided his craft through the floating

ice of the Delaware on that Christmas night, 1776. That

was a service which "land lubbers " could not have performed.

In all these trying and difficult scenes he was supported by

New England officers and men. Strong attachments were

formed. Personal associations resulted in lifelong friend-

ships. He could say with the utmost sincerity-" God bless

the New England Troops."

But what has all this to do with the first settlement of

Ohio, or with the Ordinance of '87?

I make the following extract from a dingy, yellow piece of

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14      Ohio Archaeological and Historical Quarterly.

manuscript which I find among "old papers," written by an

early pioneer to Ohio.   The writer says:

"Anterior to this period-the Revolutionary war-it is probable the great

body of the American and English people knew about as much about the

interior of Asia or Africa, as of this western region. With the exception of

General Washington and some other individuals, who, by being engaged in

the war, commonly called the French war, were entitled to locate lands on

the Ohio, it seems few or none others had the means of obtaining knowledge.

We are told that during the Revolutionary struggle the British established

a printing press in New York, entitled 'The Rivington Royal Gazette.' At

a very dark and gloomy period of that momentous struggle there was a very

large number of papers scattered by design, that gave an account of a treaty

of subsidy made with the Empress of Russia--the ambitious Catharine-

which provided that a large number of Russian troops should be furnished

the British for their American contest; that the troops were expected early

next season. These papers with this information fell into the hands of the

officers of the American army, and of course became a matter of deep solici-

tude.

At General Washington's table it became a matter of discussion: ' If this

be true, and we are driven from the Atlantic seaboard, what then is to be

done?' 'We will retire to the Valley of the Ohio,' says Washington, 'and

there we will be free.' This saying was carried from the officers to the

soldiers, by them to wives, children, and friends, and thus a spirit of enquiry

respecting Ohio was elicited."

This fragment of history is taken from the lips of the men

who sat at Washington's table and were members of his mili-

tary family-those old veterans of three wars-the evening of

whose days were spent on the banks of the Ohio and Mus

kingum, and who indulged in a veteran's right of "fighting

his battles over again."

This traditional reminiscence finds ample support in state-

ments made by Ramsay in his " History of the American Rev-

olution," published in 1789. After the loss of Fort Washing-

ton and the evacuation of New York City, the American

forces were driven in hasty retreat across New Jersey and

only escaped capture by crossing to the west side of the

Delaware river. The period of enlistment of the army had

expired.    Whole    regiments   returned  homeward.      With

2,000 or 3,000 men of a retreating, half-naked army whose

unshod feet had marked the frozen soil of Jersey with patri-

otic blood, the Commander-in-Chief was compelled to look

this question of retreat fairly in the face.  The historian says:

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The Ordinance of July 1₃th, 1787.       15

"Gen'l Washington about this time retreated to Newark.

Having abundant reasons from the posture of affairs to count

on the necessity of a further retreat he asked Col. Reed:

'Should we retreat to the back part of Pennsylvania will the

Pennsylvanians support us?' The Colonel replied: 'If the

lower counties are subdued and give up, the back counties

will do the same.' The General replied: 'We must retire

to Augusta county, Virginia.  Numbers will be obliged to

repair to us for safety, and we must try what we can do in

carrying on a predatory war, and if overpowered we must

cross the Allegheny Mountains.'"

From the same historian we have also another fragment of

history giving further evidence of the estimation then placed

upon the Ohio Valley as a strategic base in the grand strug-

gle for freedomand independence. As soon as the British

Cabinet became aware that France was determined to aid the

United States they dispatched messengers to this country

with overtures of peace, making fair promises and hoping at

least to divide the councils and weaken the supports of the

cause. These overtures were met by Congress with a posi-

tive demand for an acknowledgment of independence or an

evacuation of the country as preliminary steps to negotiation.

The following is an extract from a letter dated June 14,

1778, written as part of a private correspondence by Henry

Laurens who was then President of the old Continental Con-

gress. He says to the King's Commissioners: "You are

undoubtedly acquainted with the only terms upon which

Congress can treat for accomplishing this good end. Al-

though writing in a private character, I may venture to assert

with great assurance, they never will recede, even admitting

the continuance of hostile attempts and that from the rage of

war the good people of these States shall be driven to com-

mence a treaty westward of yonder mountain."

But why should Washington point out that distant region

as a base to fall back upon in case of defeat? The answer is

found in the fact that he had been there. He knew some-

thing of its fertility and boundless resources. As early as

1770 he had acquired titles to over 20,000 acres of its choicest

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16            Ohio Arcaeological and Historical Quarterly.

lands.       In 1773 he issued proposals for colonizing those

lands, offering liberal terms on the old English plan of paying

quit rents in lieu of purchase. In a word Washington was a

pioneer of the pioneers to the Ohio Valley. The marks of his

"little hatchet" can be still traced upon the first land lines

ever run in the valley or west of the Allegheny Mountains.

His knowledge of the country thus obtained would be readily

accepted by all who were engaged in the war, whether in the

army or in Congress.

It is quite evident therefore that Washington knew and

his officers knew what he was talking about when he said to

Colonel Reed: "If we are overpowered, we must cross the

Allegheny  Mountains."  It is also evident that Henry

Laurens understood the situation when he boldly told the

British Ministry: " Let the war rage on, sooner than accept

your insidious offers of a humiliating peace our people will

commence treaty-making westward of yonder mountains."

While Lord Howe was in possession of Philadelphia he sent

out the threat to Washington that he would "drive him be-

yond the mountains."

Now let us pass from this primitive scene-this real start-

ing point of inquiry as respects that systematic occupation of

the Northwest which was the occasion of its organic law-to

another period of that intimate intercourse that had grown

up between the Commander-in-Chief and his veteran officers.

The great conflict was over, the pledge of life, fortune and

sacred honor had been redeemed.    Peace with the great

enemy was assured. But other perils surrounded them.

The day for disbanding the army approached.   But there

were no "greenbacks," no "silver dollars," no "gold coins"

with which to meet final payments.  Washington applied

to Congress. The officers petitioned that body for relief,

but its authority did not protect it from insult, and it was a

fugitive from the menaces of a squad of unpaid and clamor-

ous troops. The only remedy for the army was to accept

certificates of settlement-warrants upon a bankrupt treasury.

They called them "final certificates," and they were final to

many of the holders, as want and hunger forced them on to the

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The Ordinance of July 13th, 1787.        17

market at "one in six," as they called it, or one-sixth of par

value. These old certificates must be kept in mind, for while

they were "finals" of a seven years' hard service, we shall

see that they were the beginning of another and not less im-

portant enterprise.

Col. Pickering, their Quartermaster General, thus describes

the condition of the Army while at Newburg and New Wind-

sor, waiting for orders to return penniless to their desolate

homes. He says: "To hear the complaints of the officers

and see the miserable condition of the soldiery is really affect-

ing. It deeply penetrates my inmost soul to see men desti-

tute of clothing, who have risked their lives like brave fel-

lows, having large arrears of pay due them and prodigiously

pinched for provisions. It is a melancholy scene." Again

he says: "Those brave and deserving soldiers, many of

whom have for six years exposed their lives to save their

country, who are unhappy enough to have fallen sick, have

for a month past been destitute of every comfort of life. The

only diet provided for them has been beef and bread-the

latter generally sour." Such was the testimony of their

Quartermaster, who was most familiar with their condition."

In their petition to Congress the officers say: "Our dis-

tresses are now brought to a point-we have borne all that

man can bear. Our property is expended, our private re-

sources are at end, and our friends are wearied out and dis-

gusted with our incessant applications. We therefore most

seriously and earnestly beg that a supply of money may be

forwarded to the army as soon as possible." (Jour. of Cong.,

Vol. IV, p. 267.)

To such a state of exasperation were those men brought

that one of their number addressed his brother officers in

the following terms: "If this then be your treatment while

the swords you wear are necessary for the defense of Amer-

ica, what have you to expect from peace when your voice

shall cease and strength dissipate by division? when those

swords, the instruments and companions of your glory shall

be taken from your sides, and no remaining mark of military

distinction left you but your wants, infirmities and scars?

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18     Ohio Archaeological and Historical Quarterly.

Can you then consent to be the only sufferers by this revolu-

tion, and returning from the field grow old in poverty,

wretchedness and contempt?  Can you consent to wade

through the vile mire of dependency and owe the miserable

remnant of that life to charity, which has hitherto been spent

in honor? If you can-go, and carry with you the jest of

Tories, the scorn of Whigs, the ridicule, and what is worse,

the pity of the world-go, starve and be forgotten."

Nothing short of a most desperate condition of affairs

could have extorted such language from one officer to his fel-

low officers, all of whom had served faithfully through the

war. I have recalled these rugged and unwelcome historical

items reluctantly and only because they are necessary in ex-

plaining subsequent movements.

But this dark cloud in our country's history had a " silver

lining.". A bright ray of sunshine broke through the pre-

vailing gloom. Col. Timothy Pickering, the Quartermaster

General, at this critical period, writing to a friend under date

of April 7th, 1783, says: " But a new plan is in contempla-

tion-no less than the forming of a new State westward of

the Ohio. Some of the principal officers are heartily en-

gaged in it. About a week since this matter was set on foot

and a plan is digesting for the purpose. Enclosed is a rough

draft of some propositions respecting it which are generally

approved of. They are in the hands of General Huntington

and General Putnam for consideration, amendment and addi-

tion." Again April 14th he writes: "General Putnam is

warmly engaged in the new planned settlement over the

Ohio. He is very desirous of getting Hutchins' map. Mr.

Aitken had them to sell. If possible pray forward me one."

A petition was drawn up addressed to " His Excellency the

President and Honorable Delegates of the United States of

America in Congress assembled." The petition was signed

by 285 officers of the army asking that a " tract of land

abounded North on Lake Erie, East on Pennsylvania, South

and Southeast on the Ohio river, West on a line beginning

on that part of the Ohio which lies twenty-four miles West of

the Scioto river, thence running North on a meridian line till it

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The Ordinance of July 1₃th, 1787.      19

intersects the River Miami which falls into Lake Erie, thence

down the middle of that river to the lake, might by formed

nto a distant government or colony of the United States."

They ask that their bounty lands may be assigned to them

in this district, and that "provision may be made for a further

grant of land to such of the army as wish to become adven-

urers in the new government, in such quantities and on such

conditions of settlement and purchases for public securities as

Congress shall judge best for the interest of the intended

government and rendering it of lasting consequence to the

American empire."

This petition was placed in General Putnam's hands, who

addressed a letter to General Washington asking him to pre-

sent it to Congress. Washington presented it to Congress,

urging it upon their attention, and subsequently "exerted

every power he was master of" to secure a compliance with

the wishes of his associates in the army.

Colonel Pickering drew up a plan for organizing the new

government which embraced the following: "The total ex-

clusion of slavery from the State to form an essential and ir-

revocable part of the Constitution." This was the first dis-

tinct proposition for the exclusion of slavery Northwest of

the Ohio ever publicly presented or discussed and was a part

of the original plan ultimately matured in '87--four years

later. It must be borne in mind that these men were not

dealing solely with land purchases or their bounties. They

were intent upon a new "State westward of the Ohio." They

tried their hands at Constitution-making from the start. Put-

nam's "letter" outlined a valuable governmental policy in

the West. Pickering's "plan" embodied organic principles.

We thus find that the same class of men who ate at Wash-

ington's table when the ugly question of surrender or retreat

was discussed are again taking counsel together over this

"Ohio scheme."   Then the Ohio was a base for retreat-

now, for an advance. By the failure of Congress to act upon

the petition the scheme was delayed but not defeated. The

 

See page 38 for a copy of the petition and a list of those who signed it.

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20     Ohio Archaeological and Historical Quarterly.

urgent necessities of the principal movers compelled them to

disperse as soon as the army was disbanded and seek em-

ployment. Putnam took a contract to survey ten townships

for Massachusetts in her province of Maine. General Tup-

per, another of the signers of the petition, accepted a vacancy

made by Putnam's retirement from the United States Sur-

veyors appointed to run out the seven Ranges. But in 1786

they met again. Putnam could say from personal observa-

tion of Maine: "That country in general is not fit for culti-

vation, and when this idea is connected with the climate a

man ought to consider himself curst even in this world who

is doomed to inhabit there as a cultivator of the lands only."

Tupper, returning from a visit to the Ohio in 1785, could

say:  "The lands in that quarter are of a much better qual-

ity than any other known to the New England people; the

climate, seasons, products, etc., are in fact equal to the most

flattering accounts that have been published of them."

With this addition to their stock of knowledge as to loca-

tions, they issued on the 10th day of January, 1786, a paper

headed "Information, " calling a meeting of those who wished

to take an interest in the "Ohio scheme" of settlement.

This resulted in the organization of the "Ohio Company of

Associates" on the 3d day of March following.

This company, composed almost entirely of the officers of

the army, decided to make a purchase of as much land in that

part of the western country that had been indicated in the

officers' petition of '83 as could be paid for with $1,000,000,

expecting to use bounty warrants and public securities in

payment. This meant the conversion of those old "Final

Certificates" into future homes "westward of the Ohio." It

also meant the foundation of a " new state." They appointed

Gen. Samuel H. Parsons, one of the associates, to apply to

Congress for a purchase of lands. He made the application

on the 9th of May, but after the 11th there was no quorum

till the 4th of July. General Parsons having returned home,

another agent, Dr. Manasseh Cutler, was appointed. He

reached New York on July 5th, '87, found a quorum of Con-

gress present and set about his work immediately. From a

• 11
 

The Ordinance of July 1₃th, 1787.     21

private journal kept at the time we are able to trace the

progress of his efforts and place a fair estimate upon the in-

fluences that surrounded the whole subject at that time.

The first subject to claim his attention was the organic law

that was to govern the future inhabitants of the country

he was commissioned to purchase.

That subject had been in the hands of Congress for a long

period prior to this application for purchase of lands. The

idea of "new states" or "distinct government" was first

acted upon in Congressional proceedings on October 10,

1780, although Maryland had called their attention to the

subject in May, 1779. Before the war the same idea had

matured into a grant not fully consummated by the British

crown for establishing a colony west of the Allegheny moun-

tains. The petition of the officers was probably the first sub-

sequent movement in the same direction outside of Congress.

As the Ohio Company were really consummating the object

of that petition it became a part of the duty of their agent to

look after the laws and constitution that were to govern the

country.

In all this they would be acting in harmony with the

known policy of the general government on that subject?

It must be borne in mind that the whole treatment of "va-

cant territory" at that time was a change from the policy

that had generally prevailed among the colonies prior to the

war. As a general thing land had not been regarded as a

source of revenue to any of the colonies or states. The

British crown reserved quit rents and fixed six pence per

acre as the measure of revenue. The Virginia plan fixed two

cents per acre and threw open her lands to "indiscriminate

location." No cash revenue was derived from the lands of

Kentucky, Tennessee or West Virginia.

To state the causes that led to the adoption of a different

policy by Congress and the steps taken to bring that policy

into effective operation would trespass too much upon the

time of this occasion; but it is quite obvious that if they ex-

pected to treat vacant lands as property-- as a source of future

revenue - it was indispensable to organize a government for

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22     Ohio Archaeological and Historical Quarterly.

the protection of that property as well as the purchasers. So

that when the agent of the Ohio Company went to New York

it was just as incumbent on him to look after the organic law

as to make terms of purchase.

When he got there Ohio was a wilderness without law.

Some surveys had been made under guard of United States

troops, but there was no protection to families or property.

This view of the matter brings up the strong contrast as to

the consideration of an organic law by statesmen and politi-

cians -however wise and justly esteemed in other matters -

but who had no expectation of making a personal application

of governmental principles, as compared with a body of in-

telligent, cultivated, refined men and families who expect to

"become adventurers," as they termed it; that is to leave

all, risk all, endure all that lay before them in that far off and

savage country. Members of Congress did not expect to do

this. Before this agent of the associates started from home

he had engaged over one hundred of his friends and neigh-

bors to go, and he expected at that time to go with them.

How did he find matters at New York? Congress was offer-

ing to sell some of the seven Ranges, but nothing that could

be called a government, suited to the wants even of a pioneer

population had been extended over the country. In one

form or other the subject had been before them since its first

introduction in 1780. More than twenty different members

of Congress had been appointed on the various committees

that during this long interval had the matter under their su-

pervision. This labor had brought forth the resolutions of

April 23d, 1784, and a reported substitute, which had been

ordered to a third reading when General Parsons made his

application for lands. With some valuable principles they

were mere skeletons; incomplete outlines as compared with

the Ordinance of July 13th.

By keeping in mind this inchoate state of legislation on the

subject and the urgency of motive that controlled the appli-

cants for a land purchase we may estimate the reason why an

organic law which has commanded universal admiration was

promptly matured and unanimously adopted.

• 13
 

The Ordinance of July 13th, 1787.      23

In dealing with Congress the agent was sent without limi-

tations or instructions. In fact his own views coincided fully

with those of his associates.

In presenting his business before Congress he has left us

some records as to the lines of policy upon which he based

his application. The following extract from his journal in-

dicates the extent and comprehensiveness of his views. He

communicated his plan to Mr. Osgood, President of the

Board of Treasury, and we are thus furnished with a contem-

poraneous estimate of its value. "He (Osgood) highly ap-

proved of our plan and told me he thought it the best ever

formed in America. He dwelt much on the advantages of

system-said system had never before been attempted-that

if the matter was pressed with spirit he believed it would

prove one of the greatest undertakings ever attempted in

America. He thought Congress would do an essential ser-

vice to the United States if they would give us the land

rather than our plan should be defeated, and promised to

make every exertion in his power in our favor." Such an

estimate from such high authority could only have applied to

the organic law as well as the mere purchase of land - the

two combined making the greatest undertaking ever attempted

in America.

Here is an evidence that he understood his mission to be

the founding of a future Commonwealth. This accorded fully

with the declared policy of Congress as well as the design of

the originators of the scheme.  The "associates" were

nearly all officers of the army -men of experience, intelli-

gence and correct principles - but they selected their agent

from another calling in life. True he had served as Chaplain

in the army, but his life and labors had been identified and

spent with that remarkable class of men known as the "New

England " or Puritan clergy. They were as a body remark-

able because at that time and previously they exerted a

greater influence in shaping the character and giving direc-

tion to the active energies of a whole people than any other

class of citizens. They had carefully considered and con-

stantly presented to the people the essential principles of

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24     Ohio Archaeological and Historical Quarterly.

human rights, of personal liberty, of the necessity of

obedience to law, in a word all the firm foundations upon

which a Republic can stand. As a support to these princi-

ples they had organized and maintained a system of popular

education, extending from the common school to institutions

of highest culture. Their influence over the people resulted

from religious convictions. That influence flowed from Puri-

tan pulpits and permeated every fiber of social, civil and polit-

ical life. They were founders and guides of a people's con-

science. They were not politicians - did not claim to be

statesmen.  Yet governmental institutions were molded by

their precepts.

Ramsay, in his " History of the American Revolution,"

fully supports this view of the prevailing influence of the clergy

at that time. He says, (Vol. I, p. 199), "The clergy of New

England were a numerous, learned, and respectable body,

who had a great ascendency over the minds of their hearers.

They connected religion and patriotism, and their sermons

and prayers represented the cause of America as the cause of

Heaven. "

To their influence may be traced those moral and educa-

tional principles that are a distinguishing feature of the Con-

stitution of Massachusetts and other New England Common-

wealths. It is only a fair inference that one of their number

should improve the opportunity to insert the same ideas and

policies into an organic law which was to protect his family

and neighbors in their future homes.

The agent left his pulpit temporarily to undertake the im-

portant service assigned to him. He was compelled to deal

with governmental questions - questions too, which Congress

had failed satisfactorily to solve. Land was of no value to

him or his associates without law. He was seeking homes

for intelligent, cultivated Christian families. If then he acted

at all -if he suggested or advised, it must be in a line with

his life time covictions. A New England clergyman would

not forget or discard that which was equivalent to his own

identity --his principles. As a matter of history we find that

after his arrival in New York he spent several days in con-

• 15
 

The Ordinance of July 13th, 1787.      25

stant intercourse with members of Congress before he en-

tered fully upon negotiations for the purchase of land-that

the governmental ordinance was submitted to him-that

he suggested changes that were adopted.  Giving then a

proper weight to these preliminary considerations, his agency

in preparing, and procuring the insertion in the Ordinance of

July 13th, of Freedom, Civil Rights, Religion, Morality,

and Knowledge, which are its distinguishing characteristics,

can hardly be questioned. It is well supported by traditional

evidences. It is also supported by the fact that in his land

purchase subsequently made he secured for the benefit of

settlers in each township a section of land for both schools

and religion, and two whole townships for a university; and

also by his subsequent personal efforts to promote those im-

portant objects.

These principles and policies were just the foundation that

himself and associates desired upon which to build their own

future homes.

This much is due to the "truth of history" in throwing

light upon a subject that has not been well understood.

It remains to consider some reasons why the views of the

agent were so fully and unanimously accepted; why Congress

gave promptly all that was asked for.

It was incumbent on him to procure for his constituents,

"the associates, " the best terms practicable for safely pro-

secuting their scheme of settlement. But decisions rested

with the sovereign power in Congress assembled.

As we look back over the transaction, the prohibition of

slavery occupies a prominent place in popular estimation.

At that time it may be doubted whether it was entitled to

that prominence.

The principal object of the Ohio Company certainly was

not to abolish slavery northwest of the river Ohio. It was

in their way and they simply brushed it out of their way.

They wanted the best principles of civil liberty and social

order all supported by morals and education, and they

secured them. But they had broader views even than these.

They had taken the dimensions of the American Empire.

• 16
 

26     Ohio Archaeological and Historical Quarterly.

They regarded the Northwest as its heart. They forecast its

immense resources and planned for their future growth and

full development. A brief notice of the situation as it then

existed is necessary to give proper weight to the reasons that

controlled Congress in yielding to the Ohio Company sub

stantially all they asked for.

I have traced the connection of Washington with the

" Ohio scheme" up to the disbanding of the army.  In his

farewell address he reminds his companions of their prospects

in the West in the following words: "The extensive and

fertile regions of the West will yield a most happy competence

to those who, fond of domestic enjoyment, are seeking for

personal independence."  (Sparks, Vol. 8, p. 483.)

We have also the positive statement of the Directors of the

Ohio Company entered upon their records in the following

words: "The path to a competence in this wilderness was

pointed out to us by the Commander-in-Chief of the Ameri-

can Army."    There can be no doubt therefore that the

initial steps of this organized system of settlement of the

Northwest, embracing fully, States, governments, laws and

constitutions, had been carefully matured as between the

New England officers, with whom personal contact had been

maintained throughout the war, and their Commander-in-

Chief. But there is further evidence of the identity of in-

terest which grew out of those personal associations.

Washington's personal relations and activities to the Ohio

Valley had just begun. Immediately on resigning his com-

mand of the army he undertook a tour of observation

through western New York, evidently with an eye to its com-

mercial advantages, then a six weeks' trip to the Ohio Val-

ley. On his return to Virginia he addressed himself to or-

ganizing efficient lines of commercial intercourse between

Virginia seaports and the Ohio Valley and the lake region.

He sought from General Butler, then Indian Agent, a solu-

tion of the problem of water communications between Lake

Erie and the Ohio River. He accept the oversight of a

chartered company for the improvement of the Potomac. In

a long letter to Governor Harrison, of Virginia, he discusses

• 17
 

The Ordinance of July 13th, 1787.      27

with great intelligence the true commercial interests of that

State as connected with the fertile West and urges action to

secure its trade and retain its loyalty to the Union by the

cement of interest. "

In a letter to David Humphreys, dated July 25, 1785, he

says: "My attention is more immediately engaged in a

project which I think big with great political as well as com-

mercial consequence to the States, especially the middle ones.

It is by removing the obstacles and extending inland naviga-

tion of our rivers to bring the States on the Atlantic in close

connection with those forming to the westward by a short

and easy transportation." (Sparks, Vol. 9, p. 114.) He

thus marks out a national line of policy in regard to internal

improvements. All this was an object of vigorous pursuit

and of earnest prosecution by Virginia statesmen at the time

of the application of the Ohio Company to Congress.  In a

pamphlet published by Dr. Cutler, after his visit to New

York, designed to give information about the West, he dis-

cusses the same topics that were engaging Washington's at-

tention.  He foretells the use of steamboats on western

waters; Washington refers to an invention of Rumsey's for

applying mechanical powers to boats. Both discuss the

question of carrying-places or portages between the Atlantic

rivers and the Ohio and the Lakes. There is abundant

evidence that the productions and commercial values of the

great West were at that time understood, appreciated and

thoroughly canvassed by the intelligent managers of the

Ohio Company and by Virginia statesmen. Evidences of

this harmony of views and interests can be found in the fol-

lowing sources of information: 1st, the pamphlet prepared

by Dr. Cutler in 1787, and his other writings; 2d, a letter

addressed by Gen. Putnam to Fisher Ames in 1790,

discussing the question whether the West was worth

retaining in the Union; 3d, Washington's letter to Governor

Harrison, and other letters written by him on that subject

after his resignation from the army and prior to his election

as President of the United States.

In these papers, all worthy of a place among State docu-

• 18
 

28     Ohio Archaeological and Historical Quarterly.

ments, the true situation of the west at that time, the views of

all parties, their expectations, their plans, the motives that

controlled their decisions are all presented and fully discussed.

From this hasty sketch it must be evident that when the

agent of the Ohio Company appeared before Congress he

could look for friendly co-operation from one source outside

of any connected with his company. That source was Vir-

ginia and Virginia statesmen. I know of no evidence that

General Washington exerted any direct influence favorable to

the plans of his old military comrades, except as I have al-

ready stated, but he was earnestly, ardently engaged in pro-

moting plans that would be greatly enhanced in value by the

permanent occupation of the Ohio Valley, adjacent to his

own lands, by an industrious, intelligent and enterprising peo-

ple. His lines of water transit would be of little value with-

out products for a commerce. It is but reasonable to claim

that Virginia statesmen were interested in the same way.

Accepting then the situation as it then stood, we have an

explanation of the fact that the agent went directly to Vir-

ginia and " members from the Southward," and placed his

business in their hands.

The Carolinas and Georgia might well be supposed to say

to Virginia, "This Northwest is too far removed from our

borders to make it a matter of essential interest to our States.

If you can secure protection to an exposed frontier from In-

dian depredations; can invite industry and good neighbors;

and can control commerce from a vast interior -if the army

in this way can receive a benefit we will yield our objection

to the prohibition of slavery, and will accept that which pro-

motes your prosperity without injuring us."

When the agent of the associates started on his mission to

New York for the purpose of purchasing lands in Ohio he

took numerous letters of introduction, and among them, to

Carrington, Grayson, and Lee, members of Congress from

Virginia, from their old military comrades--Parsons and

Putnam - Directors of the Ohio Company. This was like a

reunion of old veterans.

The Virginia Congressmen could sympathize with the

• 19
 

The Ordinance of July 13th, 1787.     29

wants and wishes of their companions with whom they had

served through the great struggle. This accounts for the

fact that a new Committee on the Governmental Ordinance

was formed with Carrington as chairman, Lee as a member,

Grayson being temporarily President of Congress, and at all

times a leader in all that pertained to the Western country.

He thus alludes to these three Virginia members, "Gray-

son, R. H. Lee, and Carrington are certainly very warm ad-

vocates."  " Mr. R. H. Lee assured me he was prepared for

one hour's speech, and he hoped for success."

All this looks like a cordial and hearty response to the

wishes of old comrades in arms, and that Virginia interests

were involved in the result. If we had Lee's "hour's

speech," and the tenor of the many conferences held between

the agent and "members from the Southward," especially

the Virginia delegation, the reasons would be disclosed why

slavery quietly stepped down and out and gave place to the

coming empire of Religion, Freedom and Knowledge.

I have thus endeavored to assign to causes known to exist

at the time, their proper and legitimate weight in determin-

ing questions of great importance as connected with the first

settlement of the Northwest and the formation of its organic

law.

I do not regard the exclusion of slavery as resulting from a

sudden fit of philanthropy or as solely due to personal views

on that subject. With the Associates its positive prohibi-

tion was a "sine qua non"-so also were the principles of

civil and religious liberty with the supports of morals, religion

and knowledge. The trouble with Congress was that while

they had a well defined policy of establishing " new states"

-"distinct governments," they failed in providing an or-

ganic law suited to the class of men who proposed to occupy

the territory. This want was supplied by one who had re-

ceived the training of that body of men who had a most in-

telligent view of civil, social, and political rights, who were

intimate with the real wants as well as remedies of the masses

and had carefully studied the problems of law, order and

right, in all their applications. While he availed himself of

• 20
 

30      Ohio Archaeological and Historical Quarterly.

all cotemporaneous influences to accomplish his mission, the

essential elements that were necessary for the foundations of

a commonwealth were at his command, and he managed to

throw them forward in advance of occupation over a territory

designed for Christian homes.

He secured the consent of Virginia and other Southern

States for a transfer of. New England principles, policies and

industrial customs to a new and virgin soil. It was a happy

blending of important business interests with correct gov-

ernmental principles; all combining to secure unanimous ap-

proval of a grand result.

By tracing, thus hurriedly and imperfectly, these prelimi-

nary steps we are brought to that crisis in our Nation's life

that is characterized by Mr. Bancroft in the following lan-

guage: "Before the Federal Convention (then sitting in

Philadelphia) had referred its resolutions to a committee of

detail, an interlude in Congress was shaping the character

and destiny of the United States of America. Sublime and

humane and eventful in the history of mankind as was the

result it will not take many words to tell how it was brought

about. For a time wisdom and peace dwelt among men and

the great Ordinance which could alone give continuance to

the Union came in serenity and stillness. Every man that

had a share in it seemed to be moved by an invisible hand to

do just what was wanted of him; all that was wrongfully un-

dertaken fell by the wayside-whatever was needed for the

happy completion of the mighty work arrived opportunely

and just at the right time moved into its place." Yes, it

came quietly, in "serenity and stillness," for in eight days

a problem was solved that had occupied the attention of Con-

gress for eight preceding years.1

From this view of the personal influences and extrinsic

circumstances that surrounded the beginnings of our Organic

1 On the 2d of May, 1779, the Delegates from the State of Maryland re-

ceived instructions that were entered upon the journals of Congress, claim-

ing that "the unsettled country if wrested from the common enemy by the

blood and treasure of the Thirteen States should be considered as common

property, subject to be parceled out by Congress into free, convenient and

independent governments in such manner and at such times as the wisdom

of that Assembly shall direct."

• 21
 

The Ordinance of July 13th, 1787.      31

Law, we may turn for a moment to one of its important

characteristics that was shaped by those surroundings.

The articles of the old Confederation were little more

than a treaty between thirteen independent States, and were

formed to meet the exigencies of the contest with the mother

country. The weak point was the inability of Congress to

enforce taxation as a basis of "public credit." This weakness

very early drove them to the vast real estate contained within

the bounds of the Territory Northwest of the River Ohio, as

a basis for a credit resting upon common property, that

could be used for common benefit. In very many different

resolves and reports "vacant territory" or the "back

country" is referred to in this light. The numerous appeals

made to the States to surrender all claims, so that the title

might rest absolutely in the United States, rested upon this

ground. As early as September 5th, 1782, a proposition

was submitted to regard these lands as a means of paying the

"debts of these States."  Mr. Witherspoon moved an

amendment so as to use the words "National debt" instead

of the "debts of these States."  With the claim of common

proprietorship grew up the theory of unity of control, or a

complete sovereignty, vested in the United States in Con-

gress assembled over the territory, both as property to be

disposed of for common benefit, and as territory to be gov-

erned by a supreme power. Witherspoon threw, as it were,

a mustard seed of nationality into the virgin soil of our insti-

tutions.

On the 24th of April, 1783, Madison, Ellsworth, and

Hamilton, in a report, refer to the "national debt," and

state their reliance for its extinguishment to be " vacant ter-

ritory." On the 13th of September, 1783, Mr. Carroll, of

Maryland, offered a proposition asserting that "the United

States have succeeded to the sovereignty over the Western

territory, and are thereby vested as one undivided and inde-

pendent Nation, with all and every power and right exercised

by the King of Great Britain over said Territory." This

sounds like a declaration of Nationality.

On the 5th of April, 1784, a grand committee of one from

• 22
 

32     Ohio Archaeological and Historical Quarterly.

each State report, "that Congress still consider vacant terri-

tory a capital resource, and this too is the time when our Con-

federacy, with all the territory included within its limits,

should assume its ultimate and permanent form." When

the resolutions of April 23d, 1783, were under consideration,

Mr. Reed, of South Carolina, offered a proposition that the

settlers should be governed by magistrates appointed by Con-

gress and under laws and regulations as "Congress shall

direct."

None of the above propositions were adopted by Congress.

They only show that there was a sentiment of nationality, and

that it gathered around the Northwest Territory.

It was a plant of slow growth. The Land Ordinance of

May 20th, 1785, distinctly recognized a separate ownership

of each State in the western lands, and provided that most of

the deeds to purchasers should be made by loan officers of

the several States, and the purchase money paid to them.

The resolutions of April 23d, 1784, contained a very feeble

assertion of the absolute right of the United States to govern

the inhabitants of the territory; but the Ohio Company went

directly to the United States in Congress assembled, made

their purchase of land from the Board of the Treasury, and

on final settlement took their deed from George Washington,

President. - This was the first complete assertion of sover-

eignty by the United States over the "vacant territory" as

property. The same is true as regards the governmental

Ordinance. The reasons for this must be found in the pecu-

liar wants, views, and policy of the Ohio Company in dealing

with Congress. They could not carry out their plan by buy-

ing in the seven ranges, because in that case they must deal

with thirteen different owners and accept alternate townships

or sections of land. They wanted a tract about equal in

amount to all the seven ranges, and they wanted it in a com-

pact form.

Then again their views of Governmental principles were

not satisfied with anything short of a supreme authority so

lodged and regulated as to command obedience to law. They

wanted order as well as law. At that time the authority of

• 23
 

The Ordinance of July 1₃th, 1787.      33

the Confederacy sat very lightly upon the pioneer settlers who

had pushed their fortunes into the great west.

Washington said to Governor Harrison of Virginia: "The

West stands, as it were, on a pivot -the touch of a feather

may turn it any way." The views of the Ohio Company

were very positive on this subject. Dr. Cutler makes this

entry in his journal during his negotiations with Congress:

"The uneasiness of the Kentucky people with respect to the

Mississippi was notorious. A revolt of that country from the

Union if a war with Spain took place was universally ac-

knowledged to be highly probable; and most certainly a sys-

tematic settlement in that country, conducted by men strongly

attached to the Federal Government and composed of young,

robust, hardy and active laborers who had no idea of any

other than the Federal Government, I conceived to be an

object worthy of some attention." General Putnam subse-

quently discussed very fully with Fisher Ames the question:

"Can we retain the West in the Union?" and asks only pro-

tection to ensure its loyalty. The Associates had no idea of

any other than the Federal Government, but they wanted

that Government to assert its sovereign rights in an Organic

Law that would protect them from any wild scheme of dis-

union that might be sprung upon them.

There is abundant evidence that the location at the right

time and at the true strategic point of such a body of true

and loyal men, with whom Washington's wishes and policies

were law, had much to do with controlling and defeating in-

cipient steps toward disunion, in turning the " pivot" in the

right direction. With these views on the part of the associ-

ates it was essential to them that the Organic Law should

assert those rights and powers that are national in their char-

acter. The company, through their agent, pledged a full

support to governmental authority in advance. The result

shows that both as regards land as property, and territory as

the subject of supreme governmental authority, there was in

connection with this transaction as full an assertion of nation-

ality as circumstances would permit. All this was really out-

• 24
 

34       Ohio Archaeological and Historical Quarterly.

side of any distinct authority conferred upon Congress by the

articles of Confederation.

In that transition period from a jealous adherence to state

rights to a full acceptance of national sovereignty, this was an

important step taken in advance of the fully matured asser-

tion of the same principle in the Constitution. The influence

of this advanced step in deciding the formation and adoption

by the States of the Nation's organic law cannot be traced

with accuracy, but the men who secured from Congress this

assertion of power outside of the articles of the Confedera-

tion were all ardent friends of the Constitution--then in

process of formation - and it is not unreasonable to suppose

that the land sale with the governmental Ordinance had an

influence in the right direction. Eight States were com-

mitted to the principle of nationality, and a large and influen-

tial body of citizens were thus pledged to its support.¹

Another feature of the Ordinance is worthy of notice as

connected with Dr. Cutler's negotiation for a large purchase

of land.

The Ohio Company had no charter, although it was the

intention of its originators to procure an act of incorporation

from one of the States or from Congress. The land purchase

was therefore a private contract. The following provision in

the Ordinance may be regarded as a full equivalent for a public

charter: "That no law ought ever to be made or have force

1 The following is an extract from a letter written by Richard Henry Lee

to General Washington, dated July 15th, 1787, two days after the passage of

the Ordinance. He says: "I have the honor to enclose to you an ordi-

nance that we have just passed in Congress, for establishing a temporary

government beyond the Ohio, as a measure preparatory to the sale of lands.

It seems necessary, for the security of property among uninformed and per-

haps licentious people, as the greater part of them who go there are, that a

strong-toned government should exist, and the right of property be clearly

defined." Mr. R. H. Lee was Dr. Cutler's friend, who promised an " hour's

speech" to aid him. It is quite evident that a "strong-toned government"

for the west was fresh in his mind two days after the passage of the Ordi-

nance. He assigns the "uninformed and perhaps licentious" character of

the people as a reason for such a government-referring to settlers already

there-not to Dr. Cutler's proposed band of emigrants. Dr. Cutler refers

in his Journal to the same uneasy condition of Western affairs and proposes

as a remedy a colony of men of a different character and who were strongly

attached to the Federal Government. This coincidence of views between

Mr. Lee, who undoubtedly represented the prevailing view in Congress, and

the agent of the Ohio Company shows clearly enough that a "strong-toned

government" grew out of this systematic plan of settlement.

• 25
 

The Ordinance of July 13th, 1787.      35

in said Territory that shall in any manner whatever interfere

with or affect private contracts or engagements bonafide and

without fraud previously formed."

That Dr. Cutler regarded his land purchase as a private

contract is very evident from an entry in his Journal, Oct. 26,

1787, when he paid over $500,000 to the Board of Treasury.

He says it was "the greatest private contract ever made in

America."

Mr. R. H. Lee refers to the Ordinance; "as a measure

preparatory to the sale of lands. It seemed necessary for

the security of property * * that a strong-toned govern-

ment should exist and the rights of property be clearly

defined."

The strong presumption is that this valuable provision as

well as others relating to "rights of property" were sug-

gested by Dr. Cutler as a protection to his property in the

absence of a charter.

I have thus hastily passed over the ground from which

sprung the elements of the first settlement of Ohio and the

Northwest, and have assigned reasons why some of the dis-

tinctive features of the Ordinance of '87 were inserted. I

have done this solely in the interest of the truth of history-

not to advance claims unsupported by facts - but to award

to every actor in the important labors of that primitive period

his full and just credit for work so well done.

It may be claimed that the true thread of history may be

traced in the course of that "Providence that guides our

ways," and our nation's ways, "rough hew them as we may,"

beginning with the early knowledge of the Ohio Valley ob-

tained by the man who, as Commander-in-Chief, was detached

from his native associations, thrown early in the Revolution-

ary struggle with New England men, imparting to them his

own observations, then pointing out to them a "competence"

in the western "wilderness," as an alternative to the humilia-

tions of poverty, that he undertook on behalf of his native

State a broad and comprehensive scheme of internal improve-

ments, resting upon Virginia seaports as one terminus, and

covering the Ohio Valley, the Lakes and the Northwest, corn

• 26
 

36     Ohio Archaeological and Historical Quarterly.

bining the highest motives of patriotism with a most intelli-

gent appreciation of commercial results. That there was in

all this a perfect harmony of interests, a coincidence of views,

a co-operation of effort as between Virginia statesmen and

the Ohio Company that readily accounts for the unanimity of

consent in accepting freedom and discarding slavery. It is

also evident that the religious, moral and educational forces

that for a previous century had been growing strong, resolute

and well prepared for activity and most important service in

New England, were skillfully and successfully transferred to

this Western Empire by that organized and systematic method

of settlement which marked its beginnings on the banks of

the Muskingum on the 7th of April, 1788. Massachusetts

and Virginia joined holy wedlock and Ohio was their first

born. The ordinance was the child's cradle. All this looks

like a chapter in the " Romance of History."

It will thus be seen that Ohio was a star of Hope among

the gloomy camp fires of Valley Forge; that the "new State

westward of the Ohio " was a broad streak of sunshine in that

dark hour of poverty, discontent and dissolution at the close

of the great struggle; that an intelligent and systematic plan

of planting a new State in perfect harmony with the policy of

Congress was wisely and well matured; that cordial approval

of its organic principles resulted from full equivalents to those

who held the power to make decisions; that in all this there

was a kindly co-operation growing out of personal associa-

tions; that a good degree of harmony as between the North

and South then existed, resulting in concessions for the com-

mon good; that patriotism was the rule, and local jealousy

the exception; that organic foundations were laid broad

enough and strong enough to bear up the fabric of an

Empire.

Standing here, as we do, upon a century's summit, looking

back with reverent gratitude upon the work of its founders,

we may gather in as historical results, that the 12,000,000 of

people composing the five great Commonwealths now quietly

dwelling upon what then was the wild surface of that old

"vacant territory," may claim for themselves and their

• 27
 

The Ordinance of July 13th, 1787.             37

pioneer fathers, that in all the slow and tedious processes of

building up, in cherishing organic ideas and giving them

vitality, in supporting their Nation and moulding its charac-

ter, in defending its life in time of extremest dangers, they

have borne their full share of patriotic service, and may now

pass that nation over, with a clean record to posterity, send-

ing its ideas and principles onward in their mighty mission of

dominion from sea to sea, and from yonder beautiful river

(Ohio) to the ends of the earth.

WM. P. CUTLER.

 

 

 

 

 

 

ORIGIN OF THE OHIO COMPANY.

 

PETITION OF OFFICERS IN THE CONTINENTAL LINE OF THE

ARMY.

 

[NOTE.-This valuable historical document, referred to in the foregoing

paper by Mr. Cutler, has often been printed, but frequently in an imperfect

form. The names of the petitioners, though referred to by historical writ-

ers, have never before been published, and are here printed in the belief

that the list will be interesting and valuable, not only to residents of Ohio,

but to all citizens of the Northwest.

The list of petitioners here given was copied from one in the hand-writing

of General Putnam, in the library of Marietta College, and was then care-

fully compared by Dr. Andrews, of the Editorial Committee, with his certi-

fied copy of the original names in the State Department at Washington.

EDITORIAL COMMITTEE.]

THE original contract made by the Ohio Company with

Congress was for 1,500,000 acres, for which they paid down

as closing the contract $500,000.   For various reasons they

found it impossible to make up the remaining moiety of the

same amount. In 1792, Dr. Cutler and General Putnam

were authorized by the Company to effect a settlement with

Congress and secure a title to the lands already paid for

The matter was referred to a Committee of the House, who,

in their report, say:

• 28