Ohio History Journal

The Ordinance of 1787 its Origin and Authorship 121

states above north latitude thirty-seven degrees was

omitted entirely but the plan of the division of the

Western Territory into states by parallels of latitude

and meridians of longitude remained the same. Other

changes included the omission of the clause against

hereditary titles and the inclusion of three new "prin-

ciples." One of these denied the right of future states

formed under the Ordinance to "interfere with the pri-

mary disposal of the soil by the United States in Con-

gress assembled" or "with the ordinances and regu-

lations which Congress may find necessary for securing

the title in such soil to the bona-fide purchasers."4

Lands belonging to the United States were exempt from

taxation and non-resident owners of lands were not to

be taxed at a higher rate than residents. Principle No.

5 in the original draft prohibiting slavery after the year

1800 on motion of a delegate from North Carolina was

stricken from the Ordinance. Thomas Jefferson and

the delegates from the northern states voted to retain

it but it failed by a vote of one state in the Congress

and was dropped from the Ordinance.

From the adoption of the plan of government for

the Western Territory until the enactment of the famous

Ordinance of 1787 these resolutions reported by the

committee of which Thomas Jefferson was chairman

were nominally in force in the Western Territory.

Someone has well observed the Ordinance of 1784 was

the law of the Territory but inoperative until it was

finally repealed. Through this period there was prac-

tically no migration to the West.

Among other movements in the Continental Con-

gress that did not produce immediate results must be

4 Barrett, Evolution of the Ordinance of. 1787, p. 26.

The Ordinance of 1787, its Origin and Authorship 123

that of James Monroe. After Jefferson had gone to

France to represent the United States there Monroe

became actively interested in the formation of a gov-

ernment for the Western Territory. He made a visit

to the Ohio Country and concluded that the division of

the Western Territory into states entirely by artificial

lines as favored by Jefferson was not practical. He

thought that natural boundaries in part should super-

sede the artificial boundaries.  In a report made to

Congress March 24, 1786, by a committee of which

Monroe was chairman it was provided that the United

States should have power to form not more than five

nor less than three states of the territory northwest

of the Ohio.

Later another Congressman from Virginia, William

Grayson, made a motion to divide this territory in the

following manner: "An east and west line touching

the most southern part of Lake Michigan should sep-

arate the territory into two parts. There should be

three states between this line and the Ohio, formed by

the meridians at the mouth of the Wabash and the

Great Miami rivers. Lake Michigan would divide the

country north of the line into two parts and these were

to be states." This made five states. The motion was

lost but the suggestion was not forgotten. Other mo-

tions and resolutions that did not carry also contributed

to the final result.

The consideration of a new ordinance for the gov-

ernment of the Western Territory was considered at

various times after the adoption of the Ordinance of

1784. On September 19, 1786, a committee, consisting

of William S. Johnson of Connecticut, Charles Pinckney

of South Carolina, Melancton Smith of New York, Na-

The Ordinance of 1787, its Origin and Authorship  125

than Dane of Massachusetts and John Henry of Mary-

land, was appointed to propose a plan of temporary

government of the Territory, and made a report. On

April 26, 1787, the same committee reported another

ordinance which was read the second time on May 9.

It was called up for its third reading on May 10. Wil-

liam Frederick Poole thus characterizes the report:

Mr. Force has printed its full text. That Mr. Dane or

any other Northern man should have served on a committee

which drafted such an ordinance, and called for its third read-

ing on the 10th of May, 1787, is evidence that there were very

crude ideas in Congress at that time as to what an ordinance

defining the fundamental laws of the Northwestern Territory

should be.  It had no resemblance to the Ordinance which

passed on the 13th of July. It had no restriction of slavery,

none of those sublime principles as to personal and civil

rights, education, religion, and morality, and the obligation of

contracts, which appeared in the later Ordinance. It had no

articles of compact; in short, it had none of those provisions

which have made the Ordinance of 1787 so beneficial and re-

nowned.⁵

As the form and substance of this report is exten-

sively criticised by Mr. Poole it is here reproduced in

full for purposes of comparison:

AN ORDINANCE FOR THE GOVERNMENT OF THE

WESTERN TERRITORY.

It is hereby ordained by the United States in Congress as-

sembled, that there shall be appointed, from time to time, a

Governor, whose commission shall continue in force for the

term of three years, unless sooner revoked by Congress.

There shall be appointed by Congress, from time to time,

a Secretary, whose commission shall continue in force for four

years, unless sooner revoked by Congress. It shall be his duty

to keep and preserve the acts and laws passed by the General

Assembly, and public records of the District, and of the pro-

ceedings of the Governor in his executive department, and

5 Poole, The Ordinance of 1787 and Dr. Manasseh Cutler in North

American Review for April, 1876.

126       Ohio Arch. and Hist. Society Publications

transmit authentic copies of such acts and proceedings every

six months to the Secretary of Congress.

There shall also be appointed a Court, to consist of three

judges, any two of whom shall form a Court, who shall have a

common-law jurisdiction, whose commissions shall continue in

force during good behavior. And to secure the rights of per-

sonal liberty and property to the inhabitants and others, pur-

chasers in the said Districts, it is hereby ordained that the in-

habitants of said Districts shall always be entitled to the benefits

of the act of habeas corpus and of the trial by jury.

The Governor and judges, or a majority of them, shall

adopt and publish in the Districts such laws of the original

States, criminal and civil, as may be necessary and best suited

to the circumstances of the District, and report them to Con-

gress from time to time, which shall prevail in said District

until the organization of the General Assembly, unless disap-

proved of by Congress; but afterwards the General Assembly

shall have authority to alter them as they think fit: provided,

however, that said Assembly shall have no power to create per-

petuities.

The Governor for the time being shall be commander-in-

chief of the militia, and appoint and commission all officers in

the same below the rank of general officers: all officers of that

rank shall be appointed and commissioned by Congress.

Previous to the organization of the General Assembly, the

Governor shall appoint such magistrates and other civil officers

in each county or township as he shall find necessary for the

preservation of peace and good order in the same. After the

General Assembly shall be organized, the powers and duties of

magistrates and other civil officers shall be regulated and de-

fined by the said Assembly; but all magistrates and other civil

officers, not herein otherwise directed, shall, during the con-

tinuance of this temporary government, be appointed by the

Governor.

The Governor shall, as soon as may be, proceed to lay out

the District into counties and townships, subject, however, to

such alterations as may thereafter be made by the Legislature,

so soon as there shall be five thousand free male inhabitants,

of full age, within the said District. Upon giving due proof

thereof to the Governor, they shall receive authority, with time

and place, to elect representatives from their counties and town-

ships as aforesaid, to represent them in General Assembly; pro-

vided, that for every five hundred free male inhabitants, there

shall be one representative, and so on progressively with the

number of free male inhabitants shall the right of representa-

The Ordinance of 1787, its Origin and Authorship   127

tion increase, until the number of representatives amount to

twenty-five; after which the number and proportion of repre-

sentatives shall be regulated by the Legislature: provided, that

no person shall be eligible or qualified to act as a representative,

unless he be a citizen of one of the United States, or have re-

sided within such District three years, and shall likewise hold,

in his own right, in fee simple, two hundred acres of land within

the same: provided also, that a freehold or life estate in fifty

acres of land in the said District, if a citizen of any of the

United States, and two years' residence if a foreigner, in addi-

tion, shall be necessary to qualify a man as elector for the said

representative.

The representatives thus elected shall serve for the term of

two years, and in case of the death of a representative, or re-

moval from office, the Governor shall issue a writ to the county

or township for which he was a member, to elect another in his

stead, to serve for the residue of the time.

The General Assembly shall consist of the Governor, a

Legislative Council, to consist of five members, to be appointed

by the United States in Congress assembled, to continue in of-

fice during pleasure, any three of whom to be a quorum; and

a House of Representatives, who shall have a legislative au-

thority complete in all cases for the good government of the

said District: provided, that no act of the said General As-

sembly shall be construed to affect any lands the property of

the United States; and provided, further, that the lands of the

non-resident proprietors shall in no instance be taxed higher

than the lands of residents.

All bills shall originate indifferently either in the Council

or House of Representatives, and, having been passed by a

majority in both Houses, shall be referred to the Governor for

his assent, after obtaining which they shall be complete and

valid; but no bill or legislative act whatever shall be valid, or

of any force without his assent. The Governor shall have power

to convene, prorogue, and dissolve the General Assembly when

in his opinion it shall be expedient.

The said inhabitants or settlers shall be subject to pay a

part of the Federal debts, contracted or to be contracted, and

to bear a proportional part of the burdens of the Government,

to be apportioned on them by Congress, according to the same

common rule and measure by which apportionments thereof

shall be made on the other States.

The Governor, Judges, Legislative Council, Secretary, and

such other officers as Congress shall at any time think proper

to appoint in such District, shall take an oath or affirmation of

128       Ohio Arch. and Hist. Society Publications

fidelity; the Governor before the President of Congress, and

all other officers before the Governor, prescribed on the 1₇th

day of January, 1785, to the Secretary of War, mutatis mutandis.

Whensoever any of the said States shall have of free in-

habitants as many as are equal in number to the one-thirteenth

part of the citizens of the original States, to be computed from

the last enumeration, such State shall be admitted by its delegates

into the Congress of the United States, on an equal footing

with the said original States: provided the consent of so many

States in Congress is first obtained as may at that time be com-

petent to such admission.

Resolved, That the resolutions of the 23d of April, 1784,

be and the same are hereby annulled and repealed.6

Comparing this report with the Ordinance of 1784

one cannot fail to be impressed with the fact that in

spite of Mr. Poole's criticism   of the former it does

furnish in large measure a practical frame of govern-

ment that in Jefferson's original plan was vaguely left

to the people of the territory.   In fact the style and

language of the later report very closely resemble in

most of its paragraphs the great Ordinance that was

subsequently adopted. In other words the committee

had made considerable progress toward the evolution

of a practical form of government for the Western

Territory. It must be noted that thus far effort had

been directed by Congress for a plan of government

embracing all the Western Territory--the portion south

of the Ohio River as well as that north and west of it.

It should be noted too that the latter report leads up

almost to the articles of compact which were the dis-

tinctive and crowning feature of the great ordinance.

Mr. Poole seems to think that there is a wonderful

contrast between the literary style of the report of

April 26, 1787, and the Ordinance adopted July 13 of

5 Smith, The St. Clair Papers, Vol. II, pp. 608-610.

The Ordinance of 1787, its Origin and Authorship  129

the same year.⁷ If we limit the comparison to the cor-

responding sections in the two documents it is certainly

somewhat difficult to tell which as a matter of style is

superior. If Mr. Dane was the author of the former

of the two there is no reason, it would seem, why, with

the aid naturally accorded by the committee, he might

not have been the author of the latter.

But Mr. Poole, as we shall see later, was thoroughly

convinced that neither Jefferson nor Dane had any claim

to authorship worthy of serious consideration.

For convenient comparison the text of the Ordinance

should be reproduced here but inasmuch as it has already

been published in Volume 5 of the Publications of the

Ohio   State  Archaeological and  Historical Society

reference is made to that volume.

The authorship of the Ordinance first became a sub-

ject of general interest throughout the United States

through the prominence given it in the great Webster-

Hayne debate. This discussion took a wide range.

It is believed that the prominence of those who had a

part in it as well as the importance of the subject itself

fully justifies a somewhat extended reproduction of

what was said, not in the form of paraphrase but in the

language of the distinguished participants.

In the United States Senate, on January 20, 1830,

in his first speech on the Foot Resolution, which pre-

cipitated the famous debate with Hayne, Daniel Web-

ster spoke as follows on the Ordinance of 1787 and its

authorship:

At the foundation of the constitution of these new north-

western states, lies the celebrated Ordinance of 1787. We are

Poole. The Ordinance of 1787 and Dr. Manasseh Cutler in North

American Review for April, 1876.

Vol. XXXIII -- 9.

130       Ohio Arch. and Hist. Society Publications

accustomed, sir, to praise the lawgivers of antiquity; we help

to perpetuate the fame of Solon and Lycurgus; but I doubt

whether one single law of any lawgiver, ancient or modern, has

produced effects of more distinct, marked and lasting character

than the Ordinance of 1787. That instrument was drawn by

Nathan Dane, then and now a citizen of Massachusetts. It

was adopted, as I think I have understood, without the slightest

alteration; and certainly it has happened to few men to be

the author of a political measure of more large and enduring

consequence. It fixed forever the character of the population

in the vast region northwest of the Ohio, by excluding from

them involuntary servitude. It impressed on the soil itself,

while it was yet a wilderness, an incapacity to sustain any other

than freemen. It laid the interdict against personal servitude,

in original compact, not only deeper than all local law, but deeper

also than all local constitutions.

Under the circumstances then existing, I look upon this

original and seasonable provision, as a real good attained. We

see its consequences at this moment, and we shall never cease to

see them, perhaps, while the Ohio shall flow. It was a great

and salutary measure of prevention. Sir, I should fear the re-

buke of no intelligent gentleman of Kentucky, were I to ask

whether, if such an ordinance could have been applied to his own

State, while it yet was a wilderness, and before Boone had passed

the gap of the Alleghanies, he does not suppose it would have con-

tributed to the ultimate greatness of that Commonwealth? It is,

at any rate, not to be doubted, that, where it did apply, it has

produced an effect not easily to be described, or measured in the

growth of the States, and the extent and increase of their popu-

lation.

Senator Thomas H. Benton of Missouri preceded

Hayne in reply to the first speech of Webster on the

famous Foot Resolution. He undertook to break the

effect of that speech by ridicule and an appeal to the

records. Benton's biographer seems to think that the

Senator capped the climax of his reply to Webster in

calling that Senator to account for ascribing to Nathan

Dane the credit of writing the Ordinance of 1787. Here

is what Benton said on this point January 20, 1830, in

reply to Webster:

The Ordinance of 1787, its Origin and Authorship  131

He has brought before us a certain Nathan Dane, of

Beverly, Massachusetts, and loaded him with such an exuberance

of blushing honors as no modern name has been known to merit

or to claim. Solon, Lycurgus, and Numa Pompilius are the

renowned legislators of antiquity to whom he is compared, and

only compared for the purpose of being placed at their head.

So much glory was earned by a single act, and that act, the sup-

posed authorship of the ordinance of 1787, for the government

of the Northwestern Territory, and especially of the clause in

it which prohibits slavery and involuntary servitude. Mr. Dane

was assumed to be the author of this clause, and upon that

assumption was found, not only the great superstructure of Mr.

Dane's glory, but a claim also upon the gratitude of Ohio and

all the Northwest, to the unrivalled legislator who was the

author of their happiness, and to this quarter of the Union

which was the producer of the legislator. So much encomium

and such grateful consequences, it seems a pity to spoil -- but

spoilt they must be; for Mr. Dane was no more the author of

that ordinance than you or I, who about that time were "mew-

ling and puling in our nurse's arms." That ordinance and espe-

cially the non-slavery clause, was not the work of Nathan Dane

of Massachusetts, but of Thomas Jefferson of Virginia. It was

reported by a committee of three, Messrs. Jefferson of Virginia,

Chase of Maryland, and Howard of Rhode Island -- a majority

from the slave states, in April, 1784, nearly two years before

Mr. Dane became a member of Congress. The clause was not

adopted at that time, there being but six states in favor of it

and the articles of confederation, on questions of that character,

requiring seven. The next year, 1785, the clause with some

modification, was moved by Mr. King, of New York, as a

proposition to be sent to a committee, and was sent to the com-

mittee accordingly; but still did not ripen into a law. A year

afterwards, the clause and the whole ordinance was passed.

upon the report of a committee of six members, of whom the

name of Mr. Dane stands No. 5, in the order of arrangement on

the Journal. There were but eight states present at the passing

of the ordinance, namely, Massachusetts, New York, New

Jersey, Delaware, Virginia, North Carolina, South Carolina and

Georgia; and every one voted for it. So passes away the glory

of this world. But yesterday the name of Nathan Dane, of

Beverly, Massachusetts, hung in equipoise against half the names

of the sages of Greece and Rome. Poetry and eloquence were

at work to blazon his fame; marble, and brass, and history, and

song were waiting to perform their office. The celestial honors

of the apotheosis seemed to be only deferred for the melancholy

132        Ohio Arch. and Hist. Society Publications

event of the sepulchre. To-day all this superstructure of honors,

human and divine, disappears from the earth. The foundation

of the edifice is sapped; and the superhuman glories of him who,

twenty-four hours ago, was taking his station among the demi-

gods of antiquity, have dispersed and dissipated into thin air --

vanishing like the baseless fabric of a vision, which leaves not

a rack behind.8

At first reading this reply seems to have demolished

the structure erected to Dane by Webster but that dis-

tinguished statesman shortly afterward, on January 26,

1830, in his second speech on Foot's Resolution, better

known as his reply to Hayne,⁹ first devoted some atten-

tion to Benton and sustained at some length his claim

for Nathan Dane. In his speech that covered two days

and touched on many phases of his plea for the Union

"now and forever, one and inseparable," he again spoke

as follows of the Ordinance of 1787 and the claim of

Nathan Dane to authorship:

Having had occasion to recur to the Ordinance of 1787,

in order to defend myself against the inferences which the

honorable member has chosen to draw from my former observa-

tions on that subject, I am not willing now entirely to take leave

of it without another remark. It need hardly be said, that that

paper expresses just sentiments on the great subject of civil

and  religious liberty.  Such sentiments were common, and

abound in all our state papers of that day. But this Ordinance

8 Register of Debates in Congress, Vol. VI, Part I, 1829-1830, p. 96.

There were five, not six, members of the committee, Carrington, Dane,

R. H. Lee, Kean and Smith. Dane's name was second on the list.

The St. Clair Papers, Vol. II, p. 610. Senator Benton evidently had

another committee in mind; hence his error.

9 Senator Hayne followed Senator Benton in the controversy rela-

tive to the Ordinance of 1787 but added nothing new. What he said on

the subject of slavery, however, in the course of his argument is of

interest here:

I can truly say that slavery, in the abstract, has but few advocates

or defenders in the slave-holding states, and that slavery as itself, an

hereditary institution descended upon us from our ancestors, would have

fewer advocates among us than it has, if those who have nothing to do

with the subject would only let us alone. The sentiment in favor of

slavery was much weaker before those intermeddlers began their opera-

tions than it is at present. -- Benton, Thirty Years' View, Vol. I, p. 136.

The Ordinance of 1787, its Origin and Authorship  133

did that which was not so common, and which is not even now

universal; that is, it set forth and declared it to be a high and

binding duty of government itself to support schools and ad-

vance the means of education, on the plain reason that religion,

morality, and knowledge are necessary to good government, and

to the happiness of mankind. One observation further. The

important provision incorporated into the Constitution of the

United States, and into several of those of the States, and

recently, as we have seen, adopted into the reformed con-

stitution of Virginia, restraining legislative power in questions

of private right, and from impairing the obligation of con-

tracts, is first introduced and established, as far as I am in-

formed, as matter of express written constitutional law, in this

Ordinance of 1787. And I must add, also, in regard to the

author of the Ordinance, who has not had the happiness to

attract the gentleman's notice heretofore, nor to avoid his sar-

casm now, that he was chairman of that select committee of the

old Congress, whose report first expressed the strong sense of

that body, that the old Confederation was not adequate to the

exigencies of the country, and recommended to the States

to send delegates to the convention which formed the present

Constitution.

An attempt has been made to transfer from the North to

the South the honor of this exclusion of slavery from the North-

western Territory. The journal, without argument or comment,

refutes such attempts. The cession by Virginia was made in

March, 1784. On the 19th of April following, a committee,

consisting of Messrs. Jefferson, Chase, and Howell, reported

a plan for a temporary government of the territory, in which

was this article: "That, after the year 1800, there shall be

neither slavery nor involuntary servitude in any of the said

States, otherwise than in punishment of crimes, whereof the

party shall have been convicted." Mr. Spaight of North Caro-

lina moved to strike out this paragraph. The question was put,

according to the form then practised. "Shall these words stand

as a part of the plan?" New Hampshire, Massachusetts, Rhode

Island, Connecticut, New York, New Jersey, and Pennsylvania,

seven States, voted in the affirmative; Maryland, Virginia, and

South Carolina, in the negative. North Carolina was divided.

As the consent of nine States was necessary, the words could

not stand, and were struck out accordingly. Mr. Jefferson voted

for the clause, but was overruled by his colleagues.

In March of the next year (1785), Mr. King of Mas-

sachusetts, seconded by Mr. Ellery of Rhode Island, proposed

the formerly rejected article, with this addition: "And that this

134       Ohio Arch. and Hist. Society Publications

regulation shall be an article of compact, and remain a funda-

mental principle of the constitutions between the thirteen original

States, and each of the States described in the resolve."  On

this clause, which provided the adequate and thorough security,

the eight Northern States at that time voted affirmatively, and

the four Southern States negatively. The votes of nine States

were not yet obtained, and thus the provision was again re-

jected by the Southern States. The perseverance of the North

held out, and two years afterwards the object was attained. It

is no derogation from the credit, whatever that may be, of

drawing the Ordinance, that its principles had before been pre-

pared and discussed, in the form of resolutions. If one should

reason in that way, what would become of the distinguished

honor of the author of the Declaration of Independence? There

is not a sentiment in that paper which had not been voted and

resolved in the assemblies, and other popular bodies in the

country, over and over again.*

It may by of collateral interest to note here that

the eulogistic references of Webster to Ohio and the

Ordinance of 1787 precipitated the famous Webster-

Hayne Debate.     These references have already been

quoted in part only. Webster traced the rapid develop-

ment of Ohio from an unbroken wilderness to a pros-

perous state of one million inhabitants.     "This new

member of the Republic," said he, "has already left far

behind her a majority of the old states. She is now

by the side of Virginia and Pennsylvania; and in point

of numbers, will shortly admit no equal but New York

herself."

When the Senate convened on January 21, 1830,

Mr. Hayne gave evidence that he had been deeply stirred

by Webster's reference to slavery as a source of weak-

ness to Kentucky and the South.       He declared that

"he would not deny that some things had fallen from

that gentleman [Webster] which rankled here, [touch-

* Register of Debates in Congress, Vol. VI, p. 62.

The Ordinance of 1787, its Origin and Authorship 135

ing his breast] from which he would desire, at once,

to relieve himself." Webster had discharged his fire

"in the face of the Senate." He [Hayne] hoped that

Webster would "now afford him the opportunity of

returning the shot."

"I am ready to receive it," said Webster. "Let the

discussion proceed."

The memorable debate then proceeded.          In the

course of it Hayne explained more fully the occasion of

his discomfiture as follows:

The honorable gentleman from Massachusetts has gone out

of his way to pass a high eulogium on the State of Ohio. In the

most impassioned tones of eloquence, he described her majestic

march to greatness. He told us that, having already left all

the other States far behind, she was now passing by Virginia, and

Pennsylvania, and about to take her station by the side of New

York. To all this, sir, I was disposed most cordially to respond.

When, however, the gentleman proceeded to contrast the State of

Ohio with Kentucky, to the disadvantage of the latter, I listened

to him with regret; and when he proceeded further to attribute

the great, and, as he supposed, acknowledged superiority of the

former in population, wealth, and general prosperity, to the

policy of Nathan Dane, of Massachusetts, which had secured to

the people of Ohio (by the ordinance of '87) a population of

freemen, I will confess that my feelings suffered a revulsion,

which I am now unable to describe in any language sufficiently

respectful towards the gentleman from Massachusetts. In con-

trasting the State of Ohio with Kentucky, for the purpose of

pointing out the superiority of the former, and of attributing

that superiority to the existence of slavery, in the one State,

and its absence in the other, I thought I could discern the very

spirit of the Missouri question intruded into this debate, for

objects best known to the gentleman himself.

After reading the discussion relative to the author-

ship of the Ordinance of 1787 by such distinguished

statesmen one naturally wonders what Nathan Dane

himself had to say on the subject. The discussion of

course aroused much interest throughout the country.

136       Ohio Arch. and Hist. Society Publications

In answer to a letter of inquiry, Dane addressed John

H. Farnham, Secretary       of the   Indiana   Historical

Society, as follows:

BEVERLY, MASS., May 12, 1831.

DEAR SIR: A few days ago I received your letter of April

12, 1831, inclosing the printed constitution and circular of the

Indiana Historical Society. It is truly gratifying to observe the

rapid, the respectable, and the substantial manner in which the

Northwestern Territory is settled. In your letter you say: "We

have been accustomed in Indiana to regard you as the author

and supporter of the ordinance* of 1787; that was the opinion

until a senator from Missouri (Col. Benton) in the senate,

session '29 and '30, denied your agency," etc. As you express

a strong desire "to receive an authentic history of the Magna

Charta of no less than three states, to be deposited in the

archives of your society, I send inclosed the printed note 'A'

as the best concise account extant of the ordinance and its

formation. The note is a part of an appendix to the ninth

volume of my General Abridgment of American Law, with

occasional notes and comments.

As to the article excluding slavery, an important one,

though perhaps not more so than the provision against impair-

ing contracts, two questions arise: Who first thought of ex-

cluding slavery from the Northwestern Territory? Who caused

the article to be made a part of the ordinance? The committee

that reported the plan of April, 1784, including an article against

slavery, very imperfect (as stated in the printed note), con-

sisted of Mr. Jefferson, Mr. Chase, of Maryland, and Mr.

Howell, of Rhode Island. As Mr. Howell was from a non-

slave-holding state, an active and able member, might he not

more probably first think of excluding slavery? Be that as it

may, the slave article in the plan of 1784 was very deficient,

and the plan being adopted and the slave article rejected, there

was an end of it. The next year, '85, Mr. King, of Massa-

chusetts, moved to, add a slave article, better in words, but im-

perfect in substance; this being only committed, a slave article

was no longer proposed by any committee. When the ordinance

of '87 was reported to congress, and under consideration, from

what I had heard, I concluded that a slave article might be

adopted, and I moved the article as it is in the ordinance. It

* Many writers do not begin the word "ordinance" with a capital

letter. In quotations the capitalization of the original is followed.

The Ordinance of 1787, its Origin and Authorship  137

was added, and unanimously agreed to, I thought to the great

honor of the slave-holding states.

As it may be asked, how does this motion appear, it is

proper to add: In the Missouri debate (as stated in the note)

expressions were used that made it proper to inquire in whose

handwriting the ordinance was. Mr. Otis, then in the senate,

caused inquiry to be made, and received from Daniel Brent a

certificate, of which the following is a copy:

"I have the pleasure to send you a printed copy of the

ordinance of 1787, found among the old papers of congress,

with the draft in manuscript of the sixth article introduced into

that ordinance. We can find nowhere the report of the com-

mittee upon which the ordinance was founded, but I presume

the handwriting of the amendment will be sufficient for your

purpose."

Mr. Otis, in his letter to me, says that the amendment (the

slave article) was in my handwriting. These facts show who

caused the slave article to be made a part of the ordinance. In

fact, the plan of 1784 was so very imperfect that it could not

be amended to answer any purpose, nor could materials be

found in it to form a thirteenth part of the ordinance of July

13, 1787. Your obedient servant,

N. DANE

JOHN H. FARNHAM, Salem, Indiana.

(Inclosure)

NOTES

NOTE A.

As after after the lapse of 43 years, some for the first time

claim the ordinance of July 13, 1787, as a Virginia production;

in substance Mr. Jefferson's, it is material to compare it with

his plan or resolve (not ordinance) of April, 1784, in order to

show how very groundless the assertion of Senator B. is, that

the ordinance of '87 was "chiefly copied" from his plan. -- To

those who make the comparison, not a word need be said to

refute his assertion -- On the face of them the difference is so

visible and essential -- But thousands read his speeches, ex-

tensively published, where one makes this comparison. It is

surprising, at this late day, that this claim is made for Virginia,

never made by herself.

As but few possess the Journals of the Old Congress, in

which Mr. Jefferson's plan of '84 and the ordinance of '87,

formed by the author, are recorded, it is proper here, concisely

to point out the material difference between them. 1st. The

138       Ohio Arch. and Hist. Society Publications

plan of '84 is contained in two pages and a half; the ordinance

of '87 in eight pages. 2nd. The first page in the plan, or re-

solve, of '84, is entirely omitted in the ordinance of '87.

3d. From the remaining page and a half of the plan there

appears to be transferred to the ordinance in substance, these

provisions, to wit: 1st. "The said territory and the states which

may be formed therein, shall forever remain a part of this

confederacy of the United States of America, subject to the

articles of confederation." 2nd. "To all the acts and ordinances

of the United States in Congress assembled, conformable there-

to."  3d. "The inhabitants and settlers in the said territory

shall be subject to pay their part of the federal debts, contracted,

or to be contracted, to be apportioned on them, by Congress,

according to the same common rule and measure, by which ap-

portionments thereof shall be made on the other states." ₄th.

"The legislatures of those districts, or new States shall never

interfere with the primary disposal of the soil, by the United

States in Congress assembled; nor with any regulations Congress

may find necessary, for securing the title to such soil to the

bola fide purchasers."  5th. "No tax shall be imposed on lands

the property of the United States." 6th. "And in no case shall

non-resident proprietors be taxed higher than residents."  It

will be observed the provisions 4, 5 and 6, some now view as

oppressive to the west, were taken from Mr. Jefferson's plan.

The residue of the ordinance of '87 consists of two descriptions,

one original as the provisions to prevent legislatures enacting

laws to impair contracts previously made -- to secure to the

Indians their rights and property -- part of the titles to prop-

erty made more purely republican and more completely divested

of feudality than any other titles in the union were in July,

1787 -- The temporary organization  was new -- no part of it

was in the plan of '84. The other description was selected

mainly from the constitution and laws of Massachusetts, as any

one may see who knows what American law was in '87 -- as 1st.

Titles to property, by will, by deed, by descent, and by de-

livery, cited verbatim in the 7th Volume of this Abridgment,

pages 389-390. -- Here it may be observed that titles to lands

once taking root are important, as they are usually permanent.

-- In this case they were planted in 400,000 square miles of

territory, and took root as was intended. 2d. All the funda-

mental, perpetual articles of compact, except as below, as 1st.

Securing forever religious liberty. 2d. The essential parts of

a bill of rights declaring that religion, morality and knowledge,

being necessary to good government and the happiness of man-

kind, schools and the means of education shall forever be en-

142                Ohio Arch. and Hist. Society Publications

couraged.      These selections from the code of Massachusetts

as also the titles to property have created for her an extensive

and lasting influence in the West, and of the most republican,

liberal and beneficial kind.

The organization, providing officers to select or make, to

decide on and execute laws, being temporary, was not deemed

an important part of the ordinance of '87. Charles Pinckney

assisted in striking out a part of this in 1786.

The 6th article on compact, the slave article, is imperfectly

understood -- Its history is -- in 1784 a committee, consisting

of Mr. Jefferson, Mr. Chase, and Mr. Howell, reported it, as

a part of the plan of 1784. This Congress struck out; only

two members south of Pennsylvania supported it -- all north of

Maryland, present, voted to preserve it, so to exclude slavery.

It was imperfect, First, as it admitted slavery till the year 1800.

Second, it admitted slavery in very considerable parts of the

territory forever, as will appear on a critical examination, espe-

cially in the parts owned for ages by French, Canadian and

other inhabitants, as their property, provided for only in the

ordinance of '87. In this ordinance of '87 slavery is excluded

from its date, and forever from every part of the whole "terri-

tory of the United States, North West of the River Ohio,"

over all of which the ordinance established government.

The amended slave article, as it is in the ordinance of '87

was added on the author's motion, and, as the Journals shew,

was not reported.

In the said 7th Volume published in 1824 full credit is

given to Mr. Jefferson and Mr. King, on account of their slave

article, too limited -- amended in July '87 by extending the

ordinance of that date, so the slave article in it, over the whole

territory and to take effect from the date. In 1802 the Indian

article was made a fundamental part of a Southern compact --

The provision as to impairing contracts was afterwards adopted

into the constitution of the United States, also into the several

state constitutions, and after forty years experience into that of

Virginia.

In the great Missouri debate in 1820, etc., one Southern

member, at least, viewed this ordinance as a Northern usurpa-

tion; especially, as to the six articles of compact. Mr. B. in

1830 claims it an honor to Virginia and Mr. Jefferson. Col.

Carrington, of Virginia, as chairman, of the committee pro

forma, reported the ordinance, but formed no part of it. Of

late years this ordinance has been made a subject of particular

importance, as proving the authors of it have afforded essential

means in promoting the prosperity and rapid growth of the

The Ordinance of 1787, its Origin and Authorship  143

West -- It was found in the great Missouri debate the Southern

attempt to run it down would not do. As a Western Senator

said, in that debate, in Congress, it had been the cloud by day

and a pillar of fire by night in settling the country -- Others,

to the same purpose. On this and some other discoveries, this

Northern usurpation, as Charles Pinckney viewed it, is now

claimed as a Southern production to prove Southern friendship

to the West -- also to prove even in '87 the East did nothing

in building up the West. In this point of view the East will

not readily yield its just claim in that business -- a claim not

denied for 40 years and more.

On the whole, if there be any praise or any blame in this

ordinance; especially in the titles to property and in the

permanent parts; so the most important, it belongs to Mas-

sachusetts, as one of her members formed it and furnished the

matter with the exceptions, following. First, he was assisted

in the committee of 86 in the temporary organization, almost

solely by Mr. C. Pinckney, who did so little he felt himself at

liberty to condemn this ordinance in that debate. Secondly,

the author took from Mr. Jefferson's resolve of '84 in substance

the said six provisions in the fourth article of compact as above

stated. Thirdly, 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, as is above-mentioned --

as to matter his invention furnishing the provisions respecting

impairing contracts and the Indian security, and some other

smaller matters, the residue, no doubt, he selected from ex-

isting laws, etc. In regard to the matter of this note, it is a

portion of American law properly and conveniently placed in

this appendix. -- The particular form of this note is in answer

to many requests, lately made, by members of Congress and

others to be informed respecting the formation, the detail and

authorship of this ordinance, which in forty years has so often

restrained insolvent acts, stop laws, and other improper legis-

lation impairing contracts.10

The debate in which Webster, Benton and Hayne

participated and the discussion throughout the country

that followed in regard to the authorship of the Ordi-

nance of 1787 and other matters involved in the historic

debate led the Pennsylvania Historical Society to ex-

10 Dane, Abridgment of American Law, Vol. IX, Appendix -- Notes,

pp. 74-76

144      Ohio Arch. and Hist. Society Publications

tend an invitation to Edward Coles, Governor of Illinois,

1822-1826, to deliver before that body an address that

was expected to definitely and finally settle all questions

raised in regard to the Ordinance. Mr. Coles had been

elected Governor of Illinois in an exciting contest by a

plurality of only fifty votes. He ran on a platform

which pledged him to maintain the provision of the

Ordinance which excluded slavery from the Northwest

Territory. He was thoroughly familiar with the efforts

that had been made to introduce slavery into Illinois and

Indiana. His interesting address is a valuable con-

tribution to the history of the stirring times through

which he lived and administered the office of chief ex-

ecutive of the state of Illinois. It is a succinct and

authoritative statement of the efforts to introduce slav-

ery in that state and the state of Indiana in violation

of the sixth article of compact in the Ordinance. Mr.

Coles' effort, however, to prove that Thomas Jefferson

deserved the credit for authorship of that Ordinance is

not so fortunate. It shows that he was not familiar

with the successive steps in the evolution of that great

charter which superseded the Ordinance of 1784 which

was drawn and introduced by Jefferson. Governor

Coles stated at the outset that he had not been able

because of advanced age and physical infirmities to

make the thorough research for information on this

subject that he desired. His investigation, however,

seems to have led him to the conclusion that there could

be no question in regard to Jefferson's title to the honor

of authorship. In support of this view he said in the

course of this address:

A comparison of the plan of government, as drawn by Mr.

Jefferson, and that finally adopted by Congress, both of which

The Ordinance of 1787, its Origin and Authorship  145

I have endeavored briefly to sketch, will show -- 1st. That with

Mr. Jefferson, originated the idea of a compact between the

original States and the new States to be formed out of the ter-

ritories, unalterable but by their joint consent. 2nd. That his

plan of government or ordinance was intended to apply to all

territory, ceded or to be ceded by individual States to the United

States; while the ordinance passed by Congress confined it to

territory previously acquired -- that is to the territory north-

west of the river Ohio. 3d. That by Mr. Jefferson's plan or

ordinance the territory was to be formed into distinct States,

whose names and boundaries were designated; with a provision

that they might form a temporary government; adopt the con-

stitution and laws of any one of the original States, such laws

being, however, subject to alteration by themselves; have a

representation in Congress, though without a vote; and when

they should have 20,000 inhabitants, form a permanent State

government, and be admitted into the Union, on an equal foot-

ing with the original States -- all which provisions were those

which formed substantially the ordinance as finally adopted by

Congress, though it was so far qualified, that a State could not

claim a right of admission into the Union until it had 80,000

inhabitants; to which were added in more detail the form of

territorial government and some specific regulations in regard

to the inheritance and conveyance of property. ₄th. That to

the provisions which Mr. Jefferson originated and inserted in

his plan, making it a matter of compact that the new States

should forever remain part of the United States; be subject to

the government of Congress, and the articles of confederation;

bear their share of the federal debts; adhere to a republican

form of government, and admit no one to citizenship who

should hold an hereditary title -- to these the Ordinance as

adopted by Congress added provisions to, protect the public

lands from interference and taxation; to preserve as highways

some of the great rivers; and to enlarge the enumeration of the

personal rights of the citizen. ₅th. That the most important

clause in Mr. Jefferson's plan -- that which provided that "after

the year 1800 of the Christian era there should be neither

slavery, nor involuntary servitude, in any of the said States,

otherwise than in punishment of crimes, whereof the party shall

have been duly convicted to have been personally guilty" -- was

adopted by Congress with no change, except the omission of the

postponement of its operation until 1800, and the introduction

of the clause for the restoration of fugitive slaves.

Some of the above particulars would not have been stated

so fully but for a claim which has been made to the authorship

Vol. XXXIII -- 10.

146       Ohio Arch. and Hist. Society Publications

of the ordinance on behalf of Nathan Dane, of Massachusetts.

To show a misconception somewhere, and in a word, the ground-

less character of this claim, it is only necessary to state that

Mr. Dane took his seat in Congress for the first time, on the 17th

of November, 1785, more than eighteen months after the

ordinance had been conceived and brought forth by its great

author, and been adopted by Congress, with certain alterations,

the principal one of which, on motion of Mr. King, had been

in effect cancelled and the original provisions restored nearly in

the words of Mr. Jefferson, eight months before Dr. Dane took

his seat in Congress. The Journals of Congress do not show

that Mr. Dane had any particular part in forming the ordinance,

beyond serving on two of the several committees to which it

was referred. What he did on those committees, I have no

means of knowing. He may have been active and instrumental

in working into the ordinance his favorite provisions about

titles to property; and thus his phrase may be rendered in-

telligible, where he says that he had "formed it mainly from the

laws of Massachusetts."11

In his Thirty Years View Senator Benton draws

attention to the argument of Edward Coles supporting

Jefferson's claim to authorship of the Ordinance of

1787. In regard to the debate in the Senate and the

view of Mr. Coles he says:

Mr. Webster was present when I read these extracts, and

said nothing. He neither reaffirmed his previous statement, that

Mr. Dane was the author of the Ordinance, and that "this great

measure was carried by the North, and by the North alone."

He said nothing; nor did he afterwards correct the errors of

his speech; and now they remain in it, and have given occasion

to a very authentic newspaper contradiction of his statement,

copies, like my statement to the Senate, from the Journals of

the old Congress. It was by Edward Coles, Esq., formerly of

Virginia and private secretary to President Madison, afterwards

Governor of the state of Illinois and now a citizen of Pennsyl-

vania, resident of Philadelphia. He made his correction through

the National Intelligencer of Washington City; and being drawn

from the same sources it agrees entirely with my own. And

thus the South is entitled to the credit of originating and pass-

ing this great measure -- a circumstance to be remembered and

11 Coles, History of the Ordinance of 1787, pp. 13-15.

The Ordinance of 1787, its Origin and Authorship  147

quoted, as showing the South at that time in taking the lead in

curtailing and restricting the existence of slavery.12

Senator Benton and Governor Coles base their argu-

ments on the assumption that the Ordinance was before

Congress from the time Jefferson introduced his reso-

lutions for the government of the Western Territory

to July 13, 1787. After a thorough examination of the

manuscript journals and accompanying documents of

the Continental Congress Peter Force prepared a paper

on the history of the Ordinance which is published as

an appendix to Vol. II of The St. Clair papers. At the

conclusion of his painstaking review he says:

It appears, then, that, instead of having "this Ordinance

under deliberation and revision for three years and six months,"

in five days it was passed through all the forms of legislation --

the reference, the action of the committee, the report, the three

several readings, the discussion and amendment by Congress,

and its final passage.

In his survey, Mr. Force elsewhere says:

This committee did not "merely revise the Ordinance;" they

prepared and reported the great bill of rights for the territory

northwest of the Ohio.

The conclusive arguments and claims successively

submitted, however, did not settle the question of author-

ship to the satisfaction of William Frederick Poole, a

reputable research authority, who has left his series

of indexes to periodical literature that have placed stu-

dents and librarians under a perpetual obligation to him.

Mr. Poole thought he had discovered new light on this

controversial subject and in his contribution to the North

American Review    for April, 1876, he gave the public

12 Benton, Thirty Years' View, Vol. I, p. 135

148       Ohio Arch. and Hist. Society Publications

the benefit of his research and conclusions. He finds

inaccuracies all along the line of previous discussions

and summarizes a few of them in the following para.

graph:

Several ordinances for the government of the Northwestern

Territory were before Congress from 1784 to 1787, and the

first authentic information concerning them appeared in a paper

prepared by Mr. Peter Force of Washington, and printed in the

National Intelligencer of August 26, 1847.  Mr. Force, when

searching for materials for his "American Archives," found a

parcel of manuscripts containing the original reports relating

to these several ordinances, with the changes and amendments

attached, their precise condition at different dates, and mem

oranda of the disposition made of them. His paper embodied

a statement of these facts. Governor Coles, writing nine years

later, was not even aware of the existence of Mr. Force's paper,

and hence his statements and his conclusions were strangely

inaccurate. Mr. Force's statement, valuable as it is, falls far

short of being a complete account of the Ordinance. It, how-

ever, developed the fact, for the first time, that, instead of

being under consideration for three years and six months, as

Governor Coles and some other writers have asserted, it was

in the brief space of four successive days, drafted de novo

reported to Congress, took its first, second, and third reading

and was enacted by the unanimous vote of all the States present

Mr. Force was amazed at this sudden action, and confesses his

inability to explain it. It is the good fortune of the writer to

have in his possession original and contemporary manuscripts

and other authentic evidence, which will show how this sudden

action was brought about, and who was the person that inspired

and controlled this action.

Mr. Poole dwells upon the Ordinance that was sub-

mitted on July 9, 1787, and finds it not at all like the

Ordinance adopted five days later. This is what he

says of it:

Among the papers found by Mr. Force was the original

draft of this ordinance as it stood on the 10th of May, and as

it came down without amendment to the ₉th of July, only five

days before the real Ordinance of 1787 was passed. Mr. Force

has printed its full text. That Mr. Dane or any other Northern

The Ordinance of 1787, its Origin and Authorship  149

man should have served on a committee which drafted such an

ordinance, and called for its third reading on the 10th of May,

1787, is evidence that there were very crude ideas in Congress

at that time as to what an ordinance defining the fundamental

laws of the Northwestern Territory should be. It had no re-

semblance to the Ordinance which passed on the 13th of July.

It had no restriction of slavery, none of those sublime principles

as to personal and civil rights, education, religion, and morality,

and the obligation of contracts, which appeared in the later

Ordinance. It had no articles of compact; in short, it had none

of those provisions which have made the Ordinance of 1787

so beneficial and renowned.13

Mr. Poole has much to say about the style of the

Ordinance and points to that as evidence that Dane

could not have been its author. Among other things

he says:

What Dr. Cutler, Mr. Dane, Colonel Carrington, or any

other member of the committee contributed to the Ordinance,

the public records of the time are silent concerning. Mr. Dane

doubtless wrote the draft and performed the clerical duties of

the committee. Its style, however, which is smooth, compact

and elegant, is not the style of Mr. Dane, which was loose, ragged

and inelegant. *  *  *  Some other hand than Mr. Dane's

must have been concerned in its formation and revision.13

Somebody, however, must have written the Ordi-

nance.   We can not assume that like Topsy "it just

growed."     Dr. Poole would not have us think         so.

He has in reservation information which, in his opinion,

clears up all obscurities and irrefutably establishes the

authorship for a new claimant. With what satisfaction

he must have viewed the surprise that he had in store

for those interested in historical research and disputed

authorship.   He approaches the point of interest thus:

It is evident from the investigation we have followed that

some sudden and potent influence was brought to bear upon

13 Poole, The Ordinance of 1787 and Dr. Manasseh Cutler in North

American Review for April, 1876.

150      Ohio Arch. and Hist. Society Publications

Congress in the early days of July, 1787, which changed the

whole current of action respecting the organic law for the gov-

ernment of the Northwestern Territory, which inspired new

ideas and suddenly crystallized in the matchless specimen of

legislation which we are considering. What was that influence?

To this inquiry we will now direct our attention.14

He then proceeds to describe the sudden appearance

on July 5, 1787, of his claimant in New York City. The

reverend gentleman drove up "in his one-horse sulky to

the 'Plow and Harrow', a tavern in the Bowery, and

sent his horse for entertainment to the Bowery barns."

He had business with Congress. He wished to purchase

a large tract of land for the Ohio Company. "His name

was Manasseh Cutler."

Dr. Poole then tells what happened:

While the good Doctor was in New York transacting this

business, the Ordinance of 1787 was drafted and passed. The

writer has in his possession the manuscript journal Dr. Cutler

kept during this period, and only extracts from it have ever

been printed. This journal supplements the material which Mr.

Force discovered, and shedding light upon those few days in

July, enables us to see why, how and by whom, that sudden

action of Congress was inspired.15

A peculiar difficulty, met by those who have essayed

to prove that Mr. Dane is entitled to little or no credit for

the authorship of the Ordinance, is found in the fact that

the report of the committee which was made by the

chairman, Colonel Edward Carrington, contained no

mention whatever of slavery. The last section of the

compact embraces this important provision and there is

no discussion as to how it was placed there. Upon that

question all are agreed. On July 12, when the Ordi-

14 Poole, The Ordinance of 1787 and Dr. Manasseh Cutler in North

American Review for April, 1876.

15 Ibid.

The Ordinance of 1787, its Origin and Authorship  151

nance was before Congress Nathan Dane offered the

article of compact. In his letter to Rufus King he gives

a very good reason why he offered it. Not only has he

stated this at different times, but his statement is cor-

roborated by the Journal of Congress and the testi-

mony of contemporaries. More than that, the identical

article in his own handwriting as he offered it has

been found with the manuscript journals of Congress.

The importance of this article, too, has been generally

conceded. Mr. Poole admits its supreme importance.

The question naturally arises, if Mr. Dane had little

or nothing to do with the authorship of the Ordinance,

how does it happen that he had the sagacity to offer this

important provision at the psychological moment and

secure its adoption? Dr. Poole has tried to answer this

question. This is what he says:

Mr. Dane assumed, however, the responsibility, under an

entire misapprehension of the sentiments of Congress, of with-

holding the anti-slavery clause till the second reading. What

would the Ordinance have been for the purpose for which it

was intended without that clause?16

Yes, indeed. What would the Ordinance have been

without that clause? It would have been more unfor-

tunate than "Hamlet with Hamlet left out." And what

would it have been without that clause in just the form

in which it was presented by Nathan Dane? He took

the original proposal offered by Thomas Jefferson in

1784; but he cut from it the postponement to the year

1801, -- fourteen years thence -- when slavery would

probably have been established throughout the North-

west Territory. The form in which he offered the article

16 Poole, The Ordinance of 1787 and Dr. Manasseh Cutler in North

American Review for April, 1876.

152      Ohio Arch. and Hist. Society Publications

made the anti-slavery clause immediately operative. He

added, it is true, the provision for the return of fugitive

slaves, a provision that in any event would have been

made by Congress under the constitution. By virtue of

this article as it was added to the Ordinance the in-

habitants of all the states formed from the Northwest

Territory may proudly and truly say that their home

land was from the very beginning dedicated to universal

liberty.

But in this digression as to the importance of the

sixth article of the compact, we shall not forget Dr.

Poole's statement that Nathan Dane, who was little

more than a clerk of the committee, had the audacity

to withhold from the report this article which is assumed

to have been agreed upon and that the statesman, Ed-

ward Carrington, in offering the report had not dis-

covered that Dane had withheld this important pro-

vision.

This statement and others of a similar character

made by Dr. Poole in his carefully prepared contribution

to the North American Review in 1876 seems to have

been accepted without much question. So well was he

satisfied that he had made an important contribution

to the early history of the Northwest Territory and so

generally had his views on this subject been approved

that as president of the American Historical Association

he made it the subject of his annual address before that

body in Washington, December 26, 1888. In this ad-

dress he speaks as follows of the authorship of the

Ordinance:

In view of its sagacity and foresight, its adaptation for the

purpose it was to accomplish and the rapidity with which it

was carried through Congress, the most reasonable explanation

The Ordinance of 1787, its Origin and Authorship  153

as it seems to me, of the origin of the Ordinance is, that it was

brought from Massachusetts by Dr. Cutler, with its principal

and main features developed; that it was laid before the land

committee of congress on July 9 as a sine qua non in the pro-

posed land purchase, and that the only work of the Ordinance

committee was to put it in a form suitable for enactment. The

original draft may have been made by either of the eminent men

who were the directors of the Ohio Company, -- Rufus Putnam,

Manasseh Cutler or Samuel Holden Parsons, but more likely

was their joint production.

And thus Dr. Poole finally disposes of Nathan Dane

and with a sweep of the pen consigns him to oblivion

as the mere "scribe of the committee."

It must be admitted, however, that Dr. Poole's later

surmise is more reasonable than his former one. Dr.

Cutler was without doubt a very able man. But he

could not be so busy as represented in his Journal,

visiting congressmen and dining with friends in the

five days spent in New York City, and at the same

time dashing off with apparent ease the Ordinance of

1787 and the act authorizing the land purchase for the

Ohio Company.

But while the latter surmise is more plausible it has

nothing to sustain it in the contemporaneous records

of Congress or the Journal and Correspondence of Dr.

Cutler and his associates. Dr. Poole's views, however,

in the annual address before the American Historical

Association went far toward confirming, in the popular

mind, the claim of Dr. Cutler.

In the year 1889, the conclusions of writers of

American History seem very generally to have trended

toward agreement in regard to the origin of the Ordi-

nance. A writer in the Pennsylvania Magazine thus

describes the consensus of opinion:

154       Ohio Arch. and Hist. Society Publications

It has been the theme of a number of essays and addresses

called forth by the celebration in 1888 of the centennial an-

niversary of the settlement at Marietta under the auspices of

the Ohio Company. These investigations have been so numer-

ous that any further consideration of the matter may look like

a work of supererogation; but in all that has appeared, that we

have met with, the same conclusion has been reached, that when

Dr. Cutler visited New York in July, 1787, to negotiate for the

purchase of a tract of land for the Ohio Company, he shaped

the Ordinance adopted by Congress on July 13, 1787, for the

government of the Northwest Territory. Some indeed go so

far as to argue that Dr. Cutler brought the Ordinance with him

from New England and made the adoption of certain provisions

found in it a sine qua non in the purchase of land.17.

The authors of monographs and addresses to this

effect are so numerous that they can not be quoted

here. Among them are Senator George F. Hoar and

Dr. Edward Everett Hale, both of whom delivered ad-

dresses at the Marietta celebration, April 7, 1888. An

address before the American Antiquarian Society by

John M. Merriam, frequently quoted, contains this

statement:

The precise articles in the final Ordinance which were due

to the foresight and wisdom of Putnam and Cutler can not now

be precisely pointed out. It seems probable, however, in view

of the earlier stand taken by Putnam and Pickering and their

associates, that provisions for the support of religion and

education and the prohibition of slavery were among the terms

of the negotiation. It is only upon this supposition that the

readiness of Congress to agree upon the sixth article (that

prohibiting slavery) can be explained.18

Dr. B. A. Hinsdale in his volume entitled The Old

Northwest, throws his support to the claims of Dr.

Cutler and cites Dr. Poole's contribution to the North

17 Stone, The Ordinance of 1787, in Pennsylvania Magazine, Vol. XIII.

p. 309.

18 Ibid., p. 310 (Quoted).

The Ordinance of 1787, its Origin and Authorship 155

American Review and the journals of Manasseh Cutler

as the authoritative sources for information on this

subject. He also quotes with approval Bancroft's dis-

tribution of the honors of authorship which reads as

follows:

Thomas Jefferson first summoned Congress to prohibit

slavery in all the territory of the United States; Rufus King

lifted up the measure when it lay almost lifeless on the

ground and suggested the immediate instead of the prospective

prohibition; a Congress composed of five Southern states to one

from New England and two from the Middle states, headed

by William Grayson, supported by Richard Henry Lee, and

using Nathan Dane as scribe, carried the measure to the goal

in the amended form in which King had caused it to be referred

to a committee; and as Jefferson had proposed, placed it under

the sanction of an irrevocable compact.19

This testimony from Bancroft contains no reference

to Dr. Cutler. It was first published before his name

was prominently connected with the probable author-

ship. It serves the purpose, however, of disposing of

Dane "as scribe" and thus aids in removing a trouble-

some obstruction to those claiming the chief honor for

Dr. Cutler.

In the meantime the Life, Journals and Correspond-

ence of Manasseh Cutler by his grandchildren William

Parker Cutler and Julia Perkins Cutler was published

in two ample volumes in 1888 and two years later

appeared the Life and Times of Ephraim Cutler, by

Julia Perkins Cutler. This gave a large circle of readers

whose interest had been aroused by frequent references

to these unpublished volumes an opportunity to read

and carefully consider the value of the information that

they contained.

19 Quoted from Hinsdale, in The Old Northwest, p. 274.

156       Ohio Arch. and Hist. Society Publications

Quotations are here given from these works setting

forth the claims of Dr. Cutler to the authorship of the

Ordinance of 1787.

Early in July, 1787, Congress was called upon to consider

an application such as had never before been made. It was a

proposition to undertake the permanent occupation of that dis-

tant wilderness in a systematic manner of settlement, upon a

large scale, embracing distinctly the idea of a "new state," as

cherished by the projectors of the scheme. When Dr. Cutler

placed this scheme before Congress he could appeal honestly

and urgently for the establishment there of such civil and social

institutions as would meet his own wants and those of his

neighbors as pioneer settlers. He could say with propriety:

"If we venture our all, with our families, in this enterprise,

we must know beforehand what kind of foundations we are

to build on." Hence, his first effort was to attend to the organic

law.

There is sufficient historic data to satisfy the inquirer that

this was the situation when, on the 10th of July, 1787, Dr.

Cutler made the following entry in his journal: "This morning

another conference with the committee. As Congress was now

engaged in settling the form of government for the Federal

Territory, for which a bill has been prepared, and a copy sent

to me (with leave to make remarks and propose amendments),

which I had taken the liberty to remark upon and propose sev-

eral amendment, I thought this the most favorable time to go

on to Philadelphia." July 19th, after his return from Phila-

delphia, he says: Called on members of Congress very early

in the morning, and was furnished with the ordinance estab-

lishment a government in the Western Federal Territory. It

is in a degree new modeled. The amendments I proposed have

all been made, except one, and that is better qualified. It was

that we should not be subject to continental taxation unless we

were entitled to a full representation in Congress. This could

not be fully obtained, for it was considered in Congress as of-

fering a premium to emigrants. They have granted us repre-

sentation with the right of debating, but not voting, upon our

being first subject to taxation."

The next inquiry is, what influence did he exert at that time

and under these circumstances in the formation of the ordinance?

It had evidently been a subject of discussion after he had

reached New York, and before he went to Philadelphia, or it

would not have been submitted to him. There is no record of the

The Ordinance of 1787, its Origin and Authorship  157

precise amendments that he suggested; and it is quite probable

that his advice extended to and covered the whole subject, as

his journal shows constant intercourse with the members before

his visit to Philadelphia. It was during this first portion of his

time that the governmental ordinance was under discussion, and

he did not enter fully upon his negotiation for the purchase of

land until his return from Philadelphia, after the passage of the

governmental ordinance. The following traditional testimony is

presented as worthy of acceptance in establishing his claims to

the authorship of some of its most important principles:

Dr. Joseph Torrey, of Salem, Mass., wrote to Judge

Ephraim Cutler, Jan. 30, 1847, as follows: "At a recent pro-

fessional call at Hamilton (Dr. Cutler's home) Brother Temple

produced large files of Ohio documents, but I had time only for

a hasty examination.   I saw  among these documents the

Ordinance of 1787 on a printed sheet. On its margin was writ-

ten that Mr. Dane requested Dr. Cutler to suggest such provi-

sions as he deemed advisable, and that at Dr. Cutler's instance

was inserted what relates to religion, education, and slavery.

These facts have long been known to me as household words."

Hon. Daniel Webster solicited and obtained the examina-

ton of Dr. Cutler's journal. Subsequently, Temple Cutler wrote

to his brother Ephraim: "Webster is now convinced that the

man whose foresight suggested some of these articles was our

Father."

Ephraim Cutler has left the following written statement of

his recollections: "I visited my Father at Washington during

the last session he attended Congress (1804-5). In his boarding

house he occupied a room with the reverend gentleman who rep-

resented the Hampshire and the Connecticut River counties,

whose name I have forgotten. We were in conversation rela-

tive to the political concerns of Ohio, the ruling parties, and the

effect of the (Ohio) Constitution in the promotion of the general

interest, when he observed that he was informed that I had

prepared that portion of the Ohio Constitution which contained

the part of the Ordinance of 1787, which prohibited slavery.

He wished to know if it was a fact. On my assuring him that

it was, he observed that he thought it a singular coincidence, as

he himself had prepared that part of the ordinance while he

was in New York negotiating the purchase of the lands for the

Ohio Company. I had not then seen the Journal he kept while

he was in New York at that time."   In other written mem-

oranda Judge Cutler refers to this conversation with his father,

and states as the reason why his prohibition of slavery, as well

158       Ohio Arch. and Hist. Society Publications

as the recognition of religion, morality, and knowledge, as

foundations of civil government, were incorporated into the

ordinance, and provision made in the land purchase for their

support, arose from the fact that "he was acting for associates,

friends, and neighbors, who would not embark in the enterprise,

unless these principles were unalterably fixed."²⁰

The publication of the works from which quotation

has been made gave opportunities for a more careful

and deliberate consideration of the testimony that they

bear in regard to the authorship of the Ordinance of

1787. It soon became apparent that the claims of Dr.

Manasseh Cutler to this honor were not as well sus-

tained as many had at first concluded. In a discrim-

inating, impartial and carefully prepared contribution

by Frederick D. Stone to The Pennsylvania Magazine of

History and Biography for the year 1889 we find a

distinct dissent from the views advanced by Dr. Poole

and the numerous writers who followed his lead.

After carefully reviewing everything that occurred

in the Continental Congress from the introduction of

the resolutions by Jefferson in 1784 up to the adoption

of the Ordinance Mr. Stone says:

This in brief is all the contemporaneous evidence there is,

and the reader has before him an epitome of everything of that

character on which the conclusion is based that Dr. Cutler and

his colleagues were virtually the authors of the Ordinance of

1787. In reviewing it, we wish it distinctly understood that we

would gladly accord to Dr. Cutler all the honor that has been

claimed for him were it not that we consider such a verdict at

variance with the truth of history and unjust to many others

who did much to create the Ordinance.21

20 Cutler, Life, Journals and Correspondence of Manasseh Cutler,

Vol. I, pp. 342-344.

21 Stone, The Ordinance of 1787, in The Pennsylvania Magazine,

Vol. XIII, p. 322.

The Ordinance of 1787, its Origin and Authorship  159

In controverting the assumption of Dr. Poole set

forth in his address before the American Historical

Association Mr. Stone says:

There is nothing but argument to support the assertion that

the government of the territory was the subject of conversation

between Cutler and Putnam and Cutler and Parsons when the

good doctor was on his way to seek an interview with Congress.22

Continuing the writer adds:

The interviews, it will be noticed, were brief. With Putnam

Cutler spent but the portion of a day; with Parsons he remained

longer, but the greater part of the time being Sunday was

occupied in preaching for and visiting Mr. Huntington. And

here let us ask, Which is the most probable, that this instrument,

so admirably suited for the work it was to perform, whose

wisdom has called forth such unstinted praise, and which ex-

ercised so powerful an influence in shaping the destinies of the

country, -- which is the most probable, that this should have

been the result of the hasty visits that Cutler paid to Putnam

and Parsons, or the work of a deliberative body, appointed for

the purpose, composed of men some of whom had already given

the matter serious attention, and all more or less familiar with

the character of the work required, having at their command

the archives of Congress containing the record of all that Con-

gress, or the committees of Congress, had ever done in the

matter?

There is not a scintilla of evidence that Dr. Cutler ever

made the adoption of what are claimed as his views in the

ordinance of 1787 a sine qua non in the purchase of land.²³

In considering the reported interview of Judge

Ephraim Cutler with his father in Washington relative

to the anti-slavery clause of the Ordinance Mr. Stone

declares:

This is not good historical evidence; but suppose it all true,

does it show anything but that he suggested what had been

again and again before Congress for consideration?24

22 Stone, The Ordinance of 1787, in The Pennsylvania Magazine,

Vol. XIII, p. 323.

23 Ibid., p. 323.

24 Ibid., p. 324.

160       Ohio Arch. and Hist. Society Publications

Further on in regard to the same subject he adds:

So far from Dr. Cutler's considering the prohibition of

slavery in the territory an essential matter that would influence

him in purchasing land of Congress, it does not appear to us

that it had any weight with him whatever. If it had been other-

wise we do not believe he would have chosen the very time the

question was coming up before Congress for consideration to

have left New York and visited Philadelphia.25

The writer proceeds at length with his unanswerable

logic to thoroughly discredit the argument that Dr. Cut-

ler was entitled to the major credit for the authorship

of the Ordinance. He then draws attention to the work

of Nathan Dane:

To Nathan Dane we would accord a much higher place

than that of a scribe. He appears to us to have been rather

the intelligent compiler. He was familiar with the action of

Congress on territorial affairs. It was on his motion that the

committee was appointed in 1786, of which Monroe was chairman,

for reporting a government for the Western States, and in

September he was made a member of that committee. He was

also a member of Johnson's committee, and while on it, with

the assistance of Pinckney, drafted the report presented on

May 9, 1787. In his letter to King, written three days after

the passage of the Ordinance, he says he drew it, and that it

passed, a few words excepted, as he originally formed it. This

would be conclusive regarding authorship were it not for his

subsequent statements and the proof we have that much of it

was the work of others, which leads to the supposition that he

did not intend to claim originality, but construction.²⁶

In 1891 was published with many citations of

authority and an exhaustive bibliography a very inter-

esting monograph by Jay A. Barrett entitled Evolution

of the Ordinance of 1787. In the concluding chapter

he considers very briefly the part that Dr. Cutler may

25 Stone, The Ordinance of 1787, in The Pennsylvania Magazine,

Vol. XIII, pp. 325-326.

²⁶ Ibid., 336.

The Ordinance of 1787, its Origin and Authorship  161

have had in the creation of this Ordinance. After a

reference to the plan of Timothy Pickering and others

in 1783 containing a positive slavery prohibition and

the sentiment of the officers of the army who were in-

terested in the West in the inclusion of such a provision,

Mr. Barrett observes:

Dr. Cutler must have been aware of this sentiment, and if

it was his endeavor to suit the associators of the company, he

would have mentioned this, along with other things, as desirable

amendments. If, on the other hand, Dr. Cutler consulted his

own opinion in the matter, it is not so certain that he would

have cared much for an anti-slavery clause. His later history

at least does not show that he was a very ardent champion of

that cause. He was one of the representatives from  Mas-

sachusetts in the eighth Congress; and when it was moved, on

January 18, 1805, to begin on the fourth of July of that year

to emancipate gradually the slaves within the national District,

Manasseh Cutler voted against the measure. Twice in the con-

sideration of this question did he oppose an anti-slavery move.

He may have had special reasons for thus recording his vote;

but, to say the least, it does not show on his part any great

anxiety in the cause of anti-slavery.²⁷

It is a rather remarkable fact in view of all that

has been written on the subject that the Life, Journals

and Correspondence of Manasseh Cutler in two volumes

aggregating 1019 pages does not contain a single ref-

erence from the manuscripts that he left in regard to

his views of slavery or its exclusion from the North-

west Territory. The index has five distinct references

to this subject but not to any written opinion that Dr.

Cutler left in regard to it. There are reminiscences of

the views that he entertained but it is still occasion for

surprise that he passed through the period of the con-

27 Barrett, Evolution of the Ordinance of 1787, p. 76.

Vol. XXXIII -- 11.

162       Ohio Arch. and Hist. Society Publications

troversy without leaving any statement of his own atti-

tude toward it.

It is not necessary, however, to depend upon hypoth-

eses, analogies, inferences and learned speculation for

light on this interesting and important subject. The

document which it would seem should have settled all

questions in regard to the source and drafting of the

Ordinance is the letter from Nathan Dane to Rufus

King written only three days after the passage of the

Ordinance and before any question had been raised in

regard to its authorship. It is a modest, straightfor-

ward statement without any effort to magnify the work

that he had done in the preparation of this great state

paper. Here it is in full:

LETTER FROM NATHAN DANE TO RUFUS KING.

"NEW YORK, July 16, 1787.

To the Hon. RUFUS KING, Esq., Philadelphia.

DEAR SIR: -- I am obliged to you for yours of the 11th

inst; with pleasure I communicate to you what we are doing

in Congress, not so much from a consciousness that what we

do is well done, as from a desire that you may be acquainted

with our proceedings. We have been much engaged in business

for ten or twelve days, for a part of which we have had eight

States. There seems to be a disposition to do business and the

arrival of R. H. Lee is of considerable importance. I think

his character serves, at least in some degree, to check the ef-

fects of the feeble habits and lax mode of thinking of some of

his countrymen. We have been employed about several objects --

the principal of which have been the government inclosed²⁸ and

the Ohio purchase; the former you will see is completed and

the latter will probably be completed tomorrow. We tried one

day to patch up²⁹ M. . . .'s p. system  of W. Government --

started new ideas and "committed the whole to Carrington, Dane,

R. H. Lee, Smith and Kean.["] We met several times, and

28 The Ordinance of 1787, adopted on 13th July.

29 These initials refer probably to the plan proposed by Mr. Monroe.

The Ordinance of 1787, its Origin and Authorship  163

at last agreed on some principles -- at least Lee, Smith and my-

self. We found ourselves rather pressed. The Ohio company

appeared to purchase a large tract of federal lands -- about six or

seven millions of acres -- and we wanted to abolish the old

system and get a better one for the government of the country,

and we finally found it necessary to adopt the best system we

could get. All agreed finally to the inclosed plan except A.

Yates. He appeared in this case, as in most others, not to under-

stand the subject at all. I think the number of free inhabitants,

60,000, which are requisite for the admission of a new State into

the Confederacy, is too small; but, having divided the whole

Territory into three States, this number appears to me to be

less important. Each State in the common course of things

must become important soon after it shall have that number of

inhabitants. The Eastern State of the three will probably be

the first, and more important than the rest, and will no doubt

be settled chiefly by Eastern people; and there is, I think, full

an equal chance of its adopting Eastern politics. When I drew

the ordinance (which passed, a few words excepted, as I orig-

inally formed it) I had no idea the States would agree to the

sixth article, prohibiting slavery, as only Massachusetts of the

Eastern States was present, and therefore omitted it in the draft;

but finding the House favorably disposed on this subject, after

we had completed the other parts, I moved the article, which

was agreed to without opposition. We are in a fair way to

fix the terms of our Ohio sale, etc. We have been upon it

three days steadily. The magnitude of the purchase makes us

very cautious about the terms of it and the security necessary

to insure the performance of it.

We have directed the Board to examine and report on

Holkar's affair.

Massachusetts Legislature was prorogued on the 7th inst.,

having continued the Tender Act, as it is called, to January,

1788; and having passed no other act of importance, except what

I presume you have seen respecting the raising of troops and

the power of the Governor to pursue the rebels.30 You ask me

how I like my new colleagues. Sedgewick, you know, we all

esteem; but I fear he will not make his attendance an object.

Thatcher I am not acquainted with. I do not know whether

Mr. Otis, at his period of life, and under his misfortunes, will

30 Refers to Shay's Rebellion.

164      Ohio Arch. and Hist. Society Publications

enter with vigor into Federal politics. I wish his accounts with

the Union had been settled, etc.

Nothing more worth particular notice.

Your affectionate friend,

N. DANE.

HON. R. KING.

P. S. States present, Massachusetts, New York, New Jer-

sey, Delaware, Virginia, North Carolina, South Carolina, and

Georgia. Brother Holten is rather an invalid; is not able to take

an active part in business, but I think supports pretty good

Eastern politics.^31.

The following comment by Charles R. King, grand-

son of Rufus King, is appropriate and just. It was

evidently written long before the publication of the Life

and Correspondence of Rufus King. This work we

learn was in course of preparation many years. The

letter to Rufus King which is the subject of this com-

ment, had previously been published at different times.

The editor is therefore mistaken in saying that it is

"now for the first time made public."  This statement

was probably true at the time it was made but not at

the time of publication. The inference drawn that Mr.

Carrington "probably declined to report the Ordinance"

is not warranted in view of the published statement of

Mr. Dane himself in his note in the Appendix to Vol. 9

of his Abridgment of American Law, which appears on

a previous page of this contribution. The language of

Dane in that note is "Colonel Carrington, of Virginia,

as chairman of the committee, pro forma, reported the

Ordinance, but formed no part of it." Otherwise the

following comment of Charles Rufus King seems to us

to be conclusive:

31 King, The Life and Correspondence of Rufus King, Vol. I, pp.

289-291.

The Ordinance of 1787, its Origin and Authorship  165

This letter, now for the first time made public, was writ-

ten, it will be seen, three days only after the passing of the famous

ordinance, before there was any controversy about it, and with-

out consciousness, so far as the modest tenor of the whole letter

can witness, of the priceless value of the act thus perfected.

The course of the preparation, discussion, and final adoption

of the ordinance is related with entire simplicity. No doubt,

therefore, can now be entertained that Mr. Dane did frame the

ordinance throughout; that it was he who directed the mode of

presenting it to the House and carrying it through all its stages.

Mr. Carrington of Virginia, named first on the committee,

and, therefore, by usage its chairman, did not, as appears by

this letter, agree with the majority of the committee, and, there-

fore probably declined to report the ordinance, devolving that

duty on Mr. Dane, who stood next on the list, and who was in

the majority.  This explains what heretofore has not been

understood, how Mr. Dane, the second on the committee, came

to be its reporter; and the almost literal accuracy is hereby

established of the account given by Daniel Webster, in his ora-

tion against Hayne, on the Foot resolutions, in the U. S. Senate,

in 1830, that this ordinance "was drawn by Nathan Dane, and

adopted by Congress without the slightest alteration." "A few

words excepted," says Mr. Dane, "and the ordinance passed as

I originally formed it."

Having thus established the conclusiveness of the claim of

authorship of the Ordinance of '87 for Nathan Dane, and

shown that to Rufus King, and indirectly to Timothy Pickering,

belongs the suggestion of the provisos contained in it against

slavery and for aids to religion and knowledge, and for assur-

ing forever the common use, without charge, of the great na-

tional highways, of the Mississippi, the St. Lawrence, and their

tributaries and their carrying-places, to all citizens of the United

States; and having, at the same time, by spreading in extenso,

before the readers of this chapter, both the resolution of Mr.

Jefferson, of April, '84, and the Ordinance of '87, put it within

their reach to compare these instruments, and thus ascertain

how much of one is borrowed from, or is suggested by, the

other, it may be said in conclusion that, in endeavoring to as-

sign to each of the prominent actors in this great scene his

due merit and responsibility, no desire has been felt, nor, it is

hoped, manifested, even unconsciously, of magnifying any one

at the expense of others. Enough of enduring reputation for

each and all must forever honor the names of Dane and Jeffer-

son, of Pickering and King, for the part taken by each in the

long, laborious, and eventful struggle, which had so glorious a

166       Ohio Arch. and Hist. Society Publications

consummation in the ordinance consecrating forever, by one

imprescriptible and unchangeable muniment, the very heart of

our land to Freedom, Knowledge, and Union.32

After a survey of the numerous arguments on the

subject Mr. Frederick D. Stone very properly, it seems

to us, reaches the conclusion expressed in the following

sentences:

The fact is, the Ordinance was a political growth. Step

by step its development can be traced in the proceedings of

Congress. Monroe's plan, imperfect as it was in form when

reported, provided for a more advanced state of civilization

than Jefferson's, and in some respects was an improvement on

it. Johnson's ordinance was an elaboration of Monroe's plan.

The Ordinance of 1787 contained the most important features

of each, together with suggestions that had been made from

time to time, and what could be found in the constitutions and

laws of the States. There is no necessity of going outside of

Congressional circles to account for its production or passage.33

Gratification and surprise has frequently been ex-

pressed that the Ordinance should have unanimously

passed the Continental Congress at a time when there

were represented in that body only three northern states

and five southern states. Briefly summarized these are

among the considerations that led to this happy result:

1. The desire of Congress to discharge its obli-

gations to the Revolutionary soldiers who were pressing

their claims and willing to take western lands in

payment.

2. The insistence of the Ohio Company, composed

of Revolutionary officers, upon the inclusion in the Ordi-

nance of certain fundamental principles.

3. The assurance that the settlement of the terri-

32 King, Charles R., Life and Correspondence of Rufus King, Vol.

I, pp. 291-302.

The Ordinance of 1787, its Origin and Authorship  167

tory northwest of the Ohio would protect the settlement

south of that river from the incursions of the Indian.

4. The presence in Congress of new members from

the South--especially from Virginia, with new ideas in

regard to the industrial and social results of free labor

under the Ordinance as finally framed.

5. The limitation of the new Ordinance to the ter-

ritory of the United States northwest of the River Ohio.

6. The opening up of the Mississippi River to free

navigation.

The delegates from the South ceased to oppose the

Ordinance when it was limited to the territory north-

west of the Ohio River and a provision was added

to the anti-slavery clause authorizing the return of

fugitive slaves. William Grayson, one of the delegates

from Virginia, in a letter to James Monroe tells why

the sixth article of compact was supported by delegates

from the South:

The clause respecting slavery was agreed to by the southern

members for the purpose of preventing tobacco and indigo being

made on the northwest side of the Ohio, as well as for other

political reasons.³⁴

The southern delegates evidently thought it would

be advantageous for them to have a monopoly of cheap

labor south of the River Ohio.

The literary style of the Ordinance has been praised

by many writers. Some of them have, it seems to us,

justly observed that in this respect it does not measure

up to the standard of the Constitution of the United

States which was in process of evolution at the same

time. There is certainly not the striking difference in

168     Ohio Arch. and Hist. Society Publications

mere style that Dr. Poole intimates between the report

made March 16, 1787, and the corresponding part of the

Ordinance as finally adopted. It would seem in view

of the many features that were undoubtedly discussed