THE ORDINANCE OF
1787.
SOME INVESTIGATIONS AS TO THE AUTHORSHIP
OF THE
FAMOUS SIXTH ARTICLE.
COL. W. E. GILMORE, CHILLICOTHE.
Senator Roberts, of Pennsylvania, in the
great debate over
the bill for the admission of Missouri
to the Union, in 1820,
characterized the Ordinance of 1787 as
"that immortal Ordinance
which, with its elder sister, the
Declaration of American Inde-
pendence, will shed eternal and
inextinguishable lustre over the
annals of our country."
Daniel Webster, in a speech upon the Foote
Resolution
(1829), said: "We are accustomed to
praise the law-givers of
antiquity; we help to perpetuate the
fame of Solon and Lycur-
gus; but I doubt whether one single law
of any law-giver, an-
cient or modern, has produced effects of
more distinct, marked
and lasting character than the Ordinance
of 1787."
Salmon P. Chase, in his preface to his
Statutes at Large of
Ohio, says of it: "Never in the
history of the world did a meas-
ure of legislation so accurately
fulfill, and yet so mightily exceed,
the expectation of the
legislators."
"Whatever," said Senator
George F. Hoar in his magnificent
oration at the Marietta Centennial
Celebration, "whatever of
these gifts nature has not given, is to
be traced directly to the
institutions of civil and religious
liberty the wisdom of your
fathers established; above all in the
great Ordinance of 1787.
'The spirit of the Ordinance pervades
all these States' (of the
Northwest). Here was the first human
government under which
absolute civil and religious liberty has
always prevailed. Here,
no witch or wizard was ever hanged or
burned. Here, no heretic
was ever molested. Here, no slave was
ever born or dwelt.
"When older States and nations,
where the chains of human
bondage have been broken, shall utter
the proud boast, 'with a
(148)
Ordinance of 1787. 149
great sum obtained I this freedom'; each
sister of the imperial
group - Ohio, Michigan, Indiana,
Illinois and Wisconsin - may
lift her queenly head with the yet
prouder answer, 'but I was
free-born!' "
The rays of the resplendent glory of
having originated and
pushed into legislation the Ordinance of
1787 illuminate many
names, but chiefly concentrate upon
those of Thomas Jefferson,
of Virginia, Rufus King and Nathan Dane,
of Massachusetts;
and in lesser degree, William Grayson,
of Virginia, and Timothy
Pickering, of Pennsylvania. To make a
just, equitable and truth-
ful partition of this glory is the
object of this paper.
It is wonderful, and it excites curious
reflections upon the
reliability of history, that there has
been so much and such vari-
ous assertion upon a matter as yet but a
little over a century
old, and which concerns national legislation!
Not only have Jefferson, King, Grayson
and Dane, in turn,
in Congress and otherwise, been
glorified as the one to whom all
the honor belongs-particularly for the
VIth Article of the
Ordinance; the article which forever
prohibited slavery in the
Territory northwest of the river Ohio,
and the States to be
carved out of it-but Rev. Dr. Manasseh
Cutler is now, in
1888, vehemently asserted to have been
the great benefactor of
all the Northwest, in that he wrote that
article and secured its
passage through the Old Congress,
through Dane.
And this latest, and too late claimant
for the honor, finds
supporters in such reputable writers as
Dr. Hinsdale (in his "Old
Northwest"), Hon. Daniel J. Ryan
(History of Ohio, 1888),
and Dr. William E. Poole, President of
the American Historical
Association, (Address of December 26,
1888, at the Fifth Annual
Meeting of the Society), and a number of
others.
Well may the Hon. Rufus King, of
Cincinnati, in his recently
published volume Ohio, of the American
Commonwealth series,
exclaim: "This subject seems to
have fallen under that morbid
infirmity in literature which delights
in denying Homer and
Shakespeare their works; and has not
spared even the Holy
Scriptures !"
Several of the original thirteen States
claimed ownership
in lands outside of their present State lines, in 1780.
That Con-
150 Ohio
Arch. and Hist. Society Publications.
gress might legislate for the government
of these Territories,
it was necessary these States should
quit claim them to the Na-
tional Government. This was done in the
following order:
In 1781, New York limited and defined
her northern and
western boundaries and ceded all her
claims to lands outside of
the lines so established.
In 1784, Virginia likewise ceded all her
claims to territory
northwest of the Ohio river.
In 1785, Massachusetts ceded all her
claims to territory to
the west of her prescribed boundaries.
And in 1786, Connecticut ceded her claim
to a portion of
the territory west of the Ohio river.
It is to be noted that the subject of
negro slavery was so
little considered in thosetimes, that no
one of these deeds of
cession contained any exclusion of that
domestic institution, or
even any restriction of it whatever.
Nevertheless, there were in-
dividual men, both North and South, as
we will see, whose con-
sciences were awakened and impressed by
the moral wrongful-
ness and political impolicy of slavery,
and the inconsistency of
maintaining it in this country, in the
face of the grand demo-
cratic doctrines of the Declaration of
Independence.
First, in point of time, and most famous
of these, was
Thomas Jefferson, of Virginia, himself a
slave owner.
On the 19th of April, 1784, immediately
after the cession
of Virginia's claims to the territory,
he, as chairman of a com-
mittee appointed for the purpose, of
which committee Mr. Chase,
of Maryland, and Mr. Howell, of Rhode
Island, were the other
members, reported to Congress a
"Plan of Government" for the
Territories. In this plan for the first
time appeared a clause in-
tended, first, to limit and restrict,
and then extinguish and ex-
clude negro slavery from the
Northwestern Territories and States
to grow out of them. It has always been
accepted as a fact that
Jefferson was the author of that clause.
Upon the motion of Mr. Speight, of North
Carolina, these
words were stricken out of the reported
plan: "That after the
year 1800 of the Christian era, there
shall be neither slavery nor
involuntary servitude in any of the
States" (to be organized
thereafter under the provisions of the
'Plan') "otherwise than in
Ordinance of 1787.
151
punishment of crime whereof the party
shall have been convicted
to have been personally guilty."
Much controversy occurred in after years
as to whether the
legislation which ultimately excluded
slavery from the North-
west had been attained despite the
opposition of the old slave-
holding States, or by their willing
assent and co-operation. There-
fore I give the vote by individuals and
States upon the motion of
Mr. Speight to strike out the above
clause, noting the fact that
it required two votes to have a State
counted, and therefore New
Jersey, then represented on this vote by
Mr. Dick only, did not
count, nor did North Carolina, whose
vote was divided.
The question was presented by the
formula "Shall the words
moved to be stricken out, stand ?"
And the vote was:
New Hampshire - Foster, aye; Blanchard,
aye. The State,
aye.
Massachusetts - Gerry, aye; Partridge,
aye, The State, aye.
Rhode Island-Ellery, aye; Howell, aye.
The State, aye.
Connecticut - Sherman, aye; Wadsworth,
aye. The State,
aye.
New York - DeWitt, aye; Paine, aye. The
State, aye.
New Jersey - Dick, aye. Only one vote.
Pennsylvania - Hand, aye; Mifflin, aye;
Montgomery, aye.
The State, aye.
Maryland - McHenry, aye; Stone, aye. The
State, aye.
Virginia - Jefferson, aye;
Hardy, no; Mercer, no. The
State, no.
North Carolina-- Williamson, aye;
Speight, no. The
State, no.
South Carolina-Reed, no; Beresford, no.
The State, no.
And so the necessary number of States
(at that time seven)
not having voted to retain the clause,
it was stricken out.
It is only fair to say that Southern
statesmen always insisted
that it was stricken out only because
not accompanied with a
provision for the rendition of fugitive
slaves, as provided for
afterwards in the Constitution of the
United States.
In the next year Timothy Pickering wrote
to Rufus King,
of Massachusetts, (March 8th, 1775),
"For God's sake, then, let
one more effort be made to prevent so
terrible a calamity"- (i. e.,
152
Ohio Arch. and Hist. Society Publications.
as the introduction of slavery).
"It will be infinitely easier to
prevent the evil at first than to
eradicate it, or check it at any
future time."
Moved by such appeals, and his own
opposition to the insti-
tutions of slavery, Mr. King accordingly
moved to commit the
consideration of the subject of
Jefferson's rejected clause to a com-
mittee for report. The motion was
seconded by Mr. Ellery, of
Rhode Island, and prevailed. Mr. King,
Mr. Ellery and Mr.
Howell were appointed to constitute the
committee, and on the
6th of April, 1785, made their
report to Congress.
This report, which was in the
handwriting of Mr. King,
recommended the adoption of a resolve or
ordinance, in the nature
of a supplement to the "Plan of
Government," by Mr. Jefferson
-which had passed Congress after the
elimination of the slavery
restriction clause--and was in the words
following: "That
there shall be neither slavery nor
involuntary servitude in any
of the states described in the resolve
of April 23d, 1784, other-
wise than in punishment of crime whereof
the party shall have
been personally guilty; and that this
regulation shall be an article
of compact, and remain a fundamental
principle of the Constitu-
tion between the thirteen original
states, and each of the states
described in said resolve of April 23,
1784."
This proposition, so far as we can
ascertain, was never voted
upon by Congress. Bancroft's History of
the Constitution says
that it was never called up. (Vol. I, pp. 179-180). It is to
be noted that it differed from the
clause of Mr. Jefferson's "Plan,"
in that it made the exclusion of slavery
immediate as well as per-
petual; and asserted the regulation to
be a compact between the
future states and the original thirteen.
Southern members of Congress in the
debate on the Missouri
Bill afterwards scouted the idea of a
compact made between a
tract of territory having, as yet, no
inhabitants, with the thirteen
states.
Mr. King's motion to raise the committee
of which he was
chairman, was made in March, and upon
that motion, of course,
a vote was taken; the report of the
committee was made on April
6th, as stated. This explanation will
untangle the confusion of
statements which have been made in
regard to the "vote upon
King's proposition," and also of
dates.
Ordinance of 1787.
153
But although Mr. King's report was not
acted upon at the
time, the subject was not forgotten. The
Indian titles to parts
of the territory northwest of the Ohio
river were being rapidly
extinguished, and that fair region was
being made ready for the
occupation of white settlers. By the
treaty of Fort Stanwix-
1784-the six nations quit-claimed to the
United States all their
right to territory west of the Ohio
river.
In January, 1785, the Wyandots,
Delawares, Ottawas and
Chippewas did the same, as to all the
lands they respectively
claimed, bordering on the Ohio river.
And finally, the warlike and dangerous
Shawnees yielded to
the United States all their claims to
lands lying east of the Great
Miami river.
The "Ohio Company of
Massachusetts" was organized in
Boston, in March, 1786. A year was
allowed within which to
obtain the necessary amount of
subscriptions to the stock of the
company; and on March 8th, 1787, at a
meeting of the stock-
holders held in Boston, Samuel H.
Parsons, Rufus Putnam and
Rev. Manasseh Cutler were chosen to be
directors of the com-
pany and charged to make application to
Congress--the "Old
Congress" - for the purchase of
lands to suit the purposes of the
company.
On the 9th of May, the
memorial of Mr. Parsons, bearing
date the 8th, was presented, and
referred to a committee consist-
ing of Edward Carrington, Rufus King,
Nathan Dane and Egbert
Benson. From the 11th of May to the 4th
of July, there was no
quorum of Congress present, and
consequently no action upon
any subject. On the 5th of July Manasseh
Cutler arrived in New
York, where the Congress was then
holding its session, to urge
the business of the company. On the
10th, the report of the
committee appointed on the Parsons
memorial, on the 9th of May,
was made, submitting a plan to meet the
wishes of the Ohio
Company, and it was made the "order
of the day" for the 11th.
It is not my purpose to follow the
history of the Ohio Company,
but have stated this much of it, firse
because the agents of that
company, by their urgence of its
business, hastened the action of
Congress in passing the ordinance of
1787; and secondly, for the
purpose of inquiring into the claim now
made, that Manasseh
Cutler proposed the VIth clause of that
ordinance.
154 Ohio Arch. and Hist. Society Publications.
On the 9th day of July, 1787, the
subject of forming a govern-
ment for the territory northwest of the
Ohio river was again taken
up. It must be remembered that Mr.
Jefferson's "Plan of Gov-
ernment" had, except the slavery
clause, been adopted, and was
still an ordinance in force; and that
Mr. King's report of April
6th, 1785, had as yet, not been acted
upon. On the 9th, when the
subject was again taken up, the whole
subject was referred for
report to a new committee, or reformed
committee, consisting of
Carrington, of Virginia; Dane, of
Massachusetts; R. H. Lee, of
Virginia; Kean, of South Carolina, and
Smith, of New York.
They were, of course, familiar with all
the precedent discus-
sions of the matter, and were therefore
able to submit their report
of an ordinance as early as the 11th,
upon which day it was read
for the first time; its second reading
on the 12th; and its third
reading, and enactment on July 13th,
1787.
It repealed the Jefferson
"Plan" of 1784. There were eight
states present - it is to be remembered
that all voting in the old
Congress was by states -and the vote
upon the passage of the
bill was as follows:
Massachusetts - Holton, aye; Dane, aye,
As a State, aye.
New York--Smith, aye; Harring, aye;
Yates, no. As a
State, aye.
New Jersey -Clark, aye; Sherman, aye. As
a State, aye.
Delaware -Kearney, aye; Mitchel, aye. As
a State, aye.
Virginia - Grayson, aye; R. H. Lee, aye;
Carrington, aye.
As a State, aye.
North Carolina - Blount, aye; Hawkins,
aye. As a State,
aye.
South Carolina -Kean, aye; Huger, aye.
As a State, aye.
Georgia -Few, aye; Pearce, aye. As a
State, aye.
And so, "It was resolved in the
affirmative," says the annals
of Congress, volume 4, page 754.
It will be observed there were four
states from the north of
the Potomac, and an equal number from
the south of it, repre-
sented by this vote. Yet every state
voted for its passage, and
every delegate but one, and he was from
the northern state of
New York.
Ordinance of 1787. 155
At this point I quote from the journal
of Rev. Manasseh
Cutler, asking that the dates be
observed:
"July loth, 1787. As Congress was
now engaged in set-
tling 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, I
thought this a favorable
opportunity to go to Philadelphia."
It appears from this journal
that he did, on that day, leave New
York, (where Congress was
in session) and did not return until the
16th, three days after
the adoption of the ordinance as it now
stands.
Now, be it remembered, also, that the
VIth Article-the
anti-slavery clause for which the credit
is claimed for him-
was not contained in the bill until it
was actually passed on the
13th, when Mr. Dane, joyfully astonished
at the unanimous vote
given to the bill, took instant
advantage of the magnanimous
mood which prevailed among the
delegates, and added the VIth
Article, which went through by the same
vote by which the bal-
ance of it had just passed.
Mr. Cutler was then in Philadelphia.
It is very probable that Mr. Cutler had
suggested, as his
journal quite plainly asserts, the
portion of the IIIrd Article
which relates to "religion,
morality and knowledge being neces-
sary to good government and the
happiness of mankind," etc. As
a minister of the Gospel, he would be
likely to make some such
suggestions; but we think it clear that
he was not the author of
the VIth Article.
I am indebted to Hon. Rufus King, of
Cincinnati, (grandson
of Hon. Rufus King, of Massachusetts, so
often herein men-
tioned) for leave to copy and use the
following interesting letter,
only recently discovered by Mr. King, in
which Mr. Dane, writ-
ing to Mr. King, of Massachusetts, under
date of July 16th,
1787-only three days after the adoption
of the Ordinance,
says:
"When I drew the Ordinance (which
passed as I originally
formed it, a few words excepted) I had
no idea the states would
agree to the VIth Article, prohibiting
slavery, as only Massa-
chusetts of the Eastern states was
present; and therefore omitted
it in the draft. But finding the House
favorably disposed on this
156 Ohio Arch. and Hist.
Society Publications.
subject, after we had completed the
other parts, I moved this
article, which was agreed to without
opposition."
And long afterwards, when in 1830 he published the
IX
volume of his compilation of the laws of
the various states, known
as "Dane's Abridgement," in an
appendix to his volume, he
made an elaborate defense of his title
to authorship of the Ordi-
nance, as against the attacks of Benton,
of Missouri, and Hayne,
of South Carolina, made in the debate
upon the "Foote Resolu-
tions," in the course of which he
says: "The VIth Article of the
compact (the slave article) is
imperfectly understood. Its his-
tory is, that in 1784 a committee,
consisting of Mr. Jefferson, Mr.
Chase and Mr. Howell, reported it as a
part of 'the Plan' of 1784.
This, (part) Congress struck out; only
two members south of
Pennsylvania supported it. All north of
Maryland, present, voted
for it, so as to exclude slavery.
"It was imperfect, too, first, in
that it admitted slavery until
the year 1800; second, in that it admitted slavery in very consid-
erable parts of the territory forever;
as will appear in a critical
examination, especially in the parts
owned for ages by French
Canadians and other inhabitants. * * *
In this ordinance of
'87 slavery is excluded forever, from
every part of the whole
'territory of the United States,
northwest of the river Ohio.'
"The amended slave article, as it
is in the ordinance of '87,
was added upon the author's (Mr. Dane's)
motion; but as the
journals show, was not so reported.
"In the seventh volume (of the
abridgment) published in
1824, full credit is given to Mr.
Jefferson and Mr. King on ac-
count of their slave
articles." * * *
Further on in Mr. Dane's statement, from
which I am now
quoting, he says:
"The author (Mr. Dane) took from
Mr. Jefferson's resolve
of '84, in substance, the six provisions
in the IVth Article of the
Compact. He took the words of the slave
article from Mr. King's
motion made in 1785, and extended its
operation as to time and
extent of territory * * * he (i. e., Mr.
Dane) furnished the
provisions respecting impairing
contracts, the Indian security and
some other smaller matters; and the
residue he selected from
existing laws."
Ordinance of 1787. 157
Such is Nathan Dane's own statement as
to the history of
this most important legislation. He says
he took the VIth Article
in substance from Rufus King--not from
Manasseh Cutler.
He claims as entirely his own, the
provisions that neither the
Territorial Legislature, nor the
Legislatures of any of the states
to be erected on the soil of the
territory, should, by ex post facto
enactments, impair the obligations of
existing contracts; securing
to the Indians their rights in their own
lands and other property,
and guaranteeing to them immunity from
invasion and disturbance
except during lawful war, "and some
other smaller matters." He
fully admits Mr. Jefferson's large share
in forming or suggesting
its most important provisions; and that
much of the balance was
selected from the code of Massachusetts.
Such is the true history of this
important legislation. Daniel
Webster was mistaken in his statement,
made in the debate on
Foote's resolution in 1829 to the effect that "this great measure
was carried by the North and the North
alone," for as the vote
shows, as many Southern states voted for
it as did Northern states.
Thomas Benton was disengenuous, when he
asserted, in the
same debate, that "that ordinance
was first drawn by Mr. Jeffer-
son, two years before Mr. Dane came into
Congress;" as the
foregoing narration fairly proves.
The truth is, that the great ordinance,
like almost every im-
portant and permanent legislative enactment,
grew; gradually
accreting the best suggestions of
Jefferson, King, Dane; and
doubtless also Grayson, Carrington, R.
H. Lee, Pickering, and
other grand men of that day, whose noble
natures would not
allow them to claim for themselves, as
God-given natural rights,
"life, liberty and the pursuit of
happiness;" and yet deny that
these blessings were equally the rights
of negroes and their de-
scendants.
It is certain that the Northwestern
states first, and then, con-
sequently, the United States of America
as a whole; including all
the future commonwealth yet to be
represented by stars in the
blue field of "Old Glory,"
have reasons-abounding and ever
increasing reasons -to be grateful to
the statesmen who enacted
the Ordinance of 1787; and so "may
all the people praise them."