Ohio History Journal




THE ORDINANCE OF 1787

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

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Ordinance of 1787

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-



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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



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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.,



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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.



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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.



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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

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



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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."



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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."