soldier with rifle american civil war THE
SESQUICENTENNIAL
EDITION

 

 

THE NORTHWEST ORDINANCE

I

INTRODUCTION

In a few pages the history books run the student quickly through the eighty years of American history, between the inception of the "more perfect union" framed by the Constitution and its collapse, in 1861, into civil war—marking the points when the white politicians in Congress debated the question what to do about slavery: the acquisition of the Lousiana Territory from Napoleon's France, the Missouri Compromise, the Annexation of Texas, the Conquest of Mexico, and the battle over Kansas. What the history books skip is an intelligent explanation of the fundamental constitutional basis that was available to the politicians, to support a majority vote in Congress that, as of 1820, slavery was prohibited in the territories of the Union. Had this vote been made in 1820, it naturally would have resulted, in the passage of time, in slavery being abolished in the States where it was—for the simple reason that, without the means of dispersing the African populations where they were, the size of the populations would naturally increase to the point of becoming majorities which would, in turn, create a competitive tension between the two races which could only be resolved by emancipating the Africans; and, eventually, recognizing them as citizens of the States in which they resided. Malthus and Hobbs teaches us this.

But, of course, for this scenario to play itself out, the politicians, representing the whole white people of the Antebellum Union, had to muster the moral courage to vote as a majority in both houses of Congress to prohibit the further introduction of slavery into the territories of the United States, a moral courage the record shows they could not muster up. Certainly, had they done so, they had the abstract means—in the words and phrases the founders wrote into the Constitution—to reasonably argue their majority vote was consistent with the founders' intent. The primary event that establishes this conclusion, is the Congress's adoption, in 1787, of the Northwest Ordinance.

II

THE AMERICAN COLONIES' CLAIM TO THE LAND WEST OF THE APPLACHIANS

Earth Map Colonies

In 1585, Sir Walter Raleigh, operating on the basis of a charter granted him by Queen Elizabeth, organized an expedition to explore what became known as the Virginia region of America. The colonists settled on Roanoke Island in what is now North Carolina, but had vanished by 1588. Eight years later, in 1608, James I gave charters to two stock companies to explore and settle the eastern seaboard of America. The company that was chartered to settle the area now known as New England did not find capital and disbanded, while the second company, chartered to settle the area between New England and Florida then occupied by Spain, established the Jamestown settlement, on James River, in 1620. In the same year, the Puritans arrived and established themselves on the Kennebec River in what is now Maine.

The Virginia Company's charter gave it the exclusive right to establish colonies in the area that extends from Cape Fear in North Carolina to Long Island Sound, the charter boundary extending westward as far as the Mississippi River and as north as Lake Michigan. In 1622, the Powhatan tribe of Native Americans stormed Jamestown and massacred its inhabitants. The Virginia Company collapsed in consequence, and this prompted King James to revoke the charter, dissolve the company, and establish Virginia as a royal colony in 1624. One hundred years later, the British Government controlled thirteen colonies, stretching along the American coast line, from Massachusetts to Georgia, containing about two and a half million white people and about one half million black people—the blacks having been forcibly brought to America from Africa, under the authority of the British monarchs for their profit.

During the one hundred years the development of the American colonies took place, Europe was dominated by the monarch system of government—a system which was based on the enslavement, in one form or another, of the millions of people living in the empires of Russia, Turkey, Austria, Spain, Great Britain and France. Whether the people were labeled as serfs, peasants, peons, or villains they were enslaved as practically as were the Africans in America. In that time Great Britain and France engaged in war almost continually, each opposing the other's effort to build up its empire, in the Middle East, in Asia, and in America. While Britain concentrated its colonies on the eastern seaboard of the continent, France laid claim to the vast track of land extending westward from the Appalachians, its explorers—Champlain, La Salle, Marquette and others—converging on the Ohio River Valley from the direction of the Great Lakes and the Gulf of Mexico, so that, by 1750, the French Government had established a line of forts extending from Quebec to the Ohio River and beyond.

The elites running the royal government of the British king's Virginia colony reacted to the French extension of forts to the Ohio, by sending a regiment of Virginia militia, under the command of twenty-two year old George Washington, to arrest French progress. In the summer of 1754, Washington's force of three hundred Virginians engaged the French in the vicinity of present-day Pittsburg, was defeated, and Washington surrendered. This action induced the British Government, which then was at war with France in Europe and in the Caribbean, to send a force of ten thousand regular troops to America to break the French hold on the Ohio Valley. In 1763, after Great Britain waged a successful invasion of Canada, the combatants executed a peace treaty in which the territory of New France was ceded to Great Britain. This left France in the New World, with a number of islands in the Caribbean—Santo Domingo and Guadalupe chief among them. And, with the whole of the North American continent as far west as the Mississippi now in its possession, Great Britain changed the southern boundary of Canada from the St. Lawrence RIver to the Ohio River and proclaimed the Appalachian mountain range as the western boundary of its American colonies.

Caribbean islands

The elites controlling political affairs in the colonies immediately began maneuvering to induce the odinary people to support a plan of secession from the British Empire, recognizing that, with France gone from the continent, the way was open for the Americans to spread themselves westward: for what could Britain effectively do to stop them? The elites' plan unfolded over a ten year period (1765-1775) in which the people of Boston took the lead. Boston was the major commercial sea port of the colonies at that time, and its people reacted most violently to the attempt of the British Parliament to exert economic and military control of their colony, by imposing taxes, first, on imports and exports, and then, when those taxes were rescinded, on tea; at the same time placing a standing army of 20,000 British Regulars at New York, with several regiments at Boston. In a series of escalating encounters between Boston citizens and the British army, a crisis of control developed which, in 1775, resulted in a general war.

To wage the war on the rebel side, the elites established a "congress" of the colonies at Philadelphia, in 1774. Delegates representing the colonies assembled at a tavern in the city and proclaimed that the political connection between them and Parliament was dissolved. Parliament reacted by bombarding Boston with a fleet of warships, taking control of the harbor and placing troops in the streets. Congress replied with the execution of an agreement between the colonies to associate together for their common defense. In 1775, a second congress of delegates assembled, which, two years later, produced a political agreement—The Articles of Confederation—by which the colonies were to be united for the purpose of war. The agreement was ratified by the thirteen colonies in 1781, and remained in force until 1789, when nine of the colonies—now recognized by their treaty of peace with Britain as "independent, sovereign States"—ratified the Constitution and it became operative as to them.

III

WHAT TO DO ABOUT SLAVERY?

Maryland's delegates refused to accept the political arrangement defined by the Articles unless Virgnia ceded her claims to the territory northwest of the River Ohio to the "United States in Congress assembled." The colony, being small, and sandwiched between Virginia and Pennsylvania, feared that Virginia would attempt to develop the territory herself, thereby increasing her already considerable power to the detriment of Maryland; in time, Virginia might even treat the territory as a "State" and federate with it in a way that effectively blocked Maryland from the west. Only when Virginia offered to cede her claims the territory, in 1781, did Maryland ratify the Articles.

In January, 1781, Thomas Jefferson, then Governor of Virginia's secession government, acting under the authority of an Act passed by the its rebel "Legislature," signed a document of cession of the subject territory to the Congress of "The United States" which Congress did not accept. The document contained, among other things, two unique political conditions: first, that slavery was to be excluded from the territory "after the year 1800," and, second, that there was to be framed a "compact" between the "states" formed from the territory and the "United States." The slavery provision probably originated with a delegate from Rhode Island, David Howell, in 1780. The Congress did not accept the terms of the cession at that time. In September 1783, Congress informed Virginia what terms were acceptable to it.

David Howell

David Howell of Rhode Island & Provindence Plantation

 

The Treaty of Peace with Britain was signed by King George, on September 3, 1783

Treaty of Paris

Treaty of peace

Treaty of Peace

Journal of the Continental Congress, September 13, 1783

". . .any part of the continent of North America, which before the treaty of Paris in 1763, or in virtue of that treaty, were acknowledged to belong to the Crown of Great Britain or to the United States, heretofore called British colonies, or which are at this time, or have lately been under the power of the King and Crown of Great Britain, and guarantees to the United States their possessions and the additions or conquests that their confederation may obtain during the war, from any of the dominions now or heretofore possessed by Great Britain in North America. And whereas the territory ceded and guarantied as aforesaid, comprehends a large extent of country lying without the lines, limits or acknowledged boundaries of any of the United States, over which, or any part of which, no State can or ought to exercise any sovereign, legislative or jurisdictional faculty, the same being acquired under the confederation, and by the joint and united efforts of all. And whereas several of the states acceded to the confederation under the idea held forth by the State of Maryland, in her instructions to her delegates, entered on the Journals of Congress, May 21, 1779, viz. "that a country unsettled at the commencement of this war, claimed by the British Crown, and ceded to it by France in the treaty of Paris, 1763, if wrested from the common enemy, by the blood and treasure of the thirteen states, should be considered as a common property, subject to be parcelled out by Congress, into free, convenient and independent governments, in such manner, and at such times, as the wisdom of that assembly shall hereafter direct." And whereas the said State of Maryland, especially for herself, provides and declares, in "An Act entered on the Journals of Congress, 12 February, 1781, entitled an act to empower the delegates of this State in Congress, to subscribe and ratify the Articles of Confederation," viz. "that by acceding to the said confederation, this State doth not relinquish or intend to relinquish any right or interest she hath with the other united or confederated states, to the back country; but claims the same as fully as was done by the legislature of this State, in their declaration which stands entered on the Journals of Congress; this State relying on the justice of the several states hereafter, as to the said claim made by this State." And whereas the United States have succeeded to the sovereignty over the western territory, and are thereby vested as one undivided and independent nation, with all and every power and right exercised by the king of Great Britain, over the said territory, or the lands lying and situated without the boundaries of the several states, and within the limits above described; and whereas the western territory ceded by France and Spain to Great Britain, relinquished to the United States by Great Britain, and guarantied to the United States by France as aforesaid, if properly managed, will enable the United States to comply with their promises of land to their officers and soldiers; will relieve their citizens from much of the weight of taxation; will be a means of restoring national credit, and if cast into new states, will tend to increase the general happiness of mankind, by rendering the purchase of land easy, and the possession of liberty permanent;

therefore Resolved, That a committee be appointed to report the territory lying without the boundaries of the several states, and within the limits of the United States, and to report the most eligible part or parcels thereof, for one or more convenient and independent states; and also to report an establishment for a land-office."

Journal of the Continental Congress, of September 13, 1783, Continued

The committee, consisting of Mr. John Rutledge, Mr. Oliver Ellsworth, Mr. Gunning Bedford, Mr. Nathaniel Gorham and Mr. James Madison, to whom were referred the act of the legislature of Virginia, of the 2d of January, 1781, and the report thereon, report, that they have considered the several matters referred to them, and observe, that the legislature of Virginia, by their act of the 2d of January, 1781, resolved that they would yield to the Congress of the United States, for the benefit of the said states, all right, title and claim which the said Commonwealth hath to the lands northwest of the river Ohio, upon the following conditions, viz.

1. That the territory so ceded, should be laid out and formed into states, containing a suitable extent of territory, not less than one hundred nor more than one hundred and fifty miles square, or as near thereto as circumstances would admit: and that the states so formed, should be distinct republican states, and admitted members of the federal union; having the same rights of sovereignty, freedom and independence as the other states.

. . .

3. That the French and Canadian inhabitants and other settlers of the Kaskaskies, St. Vincents and the neighbouring villages, who have professed themselves citizens of Virginia, should have their possessions and titles confirmed to them, and should be protected in the enjoyment of their rights and liberties; for which purpose troops should be stationed there at the charge of the United States, to protect them from the encroachments of the British forces at Detroit or elsewhere, unless the events of the war should render it impracticable.

4. As Colonel George Rogers Clarke planned and executed the secret expedition by which the British posts were reduced, and was promised if the enterprise succeeded, a liberal gratuity in lands in that country, for the officers and soldiers who first marched thither with him; that a quantity of land not exceeding one hundred and fifty thousand acres, should be allowed and granted to the said officers and soldiers, and the other officers and soldiers that have been since incorporated into the said regiment, to be laid off in one tract, the length of which not to exceed double the breadth, in such place on the northwest side of the Ohio as the majority of the officers should choose, and to be afterwards divided among the said officers and soldiers, in due proportion according to the laws of Virginia.

. . .

6. That all the lands within the territory so ceded to the United States, and not reserved for or appropriated to any of the before-mentioned purposes, or disposed of in bounties to the officers and soldiers of the American army, should be considered as a common fund for the use and benefit of such of the United American States, as have become or shall become members of the confederation or feederal alliance of the said states, Virginia inclusive, according to their usual respective proportions in the general charge and expenditure, and should be faithfully and bona fide disposed of for that purpose, and for no other use or purpose whatsoever.

7. And therefore that all purchases and deeds from any Indian or Indians, or from any Indian nation or nations, for any lands within any part of the said territory which have been or should be made for the use or benefit of any private person or persons whatsoever, and royal grants within the ceded territory, inconsistent with the chartered rights, laws and customs of Virginia, should be deemed and declared absolutely void and of no effect, in the same manner as if the said territory had still remained subject to and part of the Commonwealth of Virginia.

8. That all the remaining territory of Virginia, included between the Atlantic ocean and the southeast side of the river Ohio, and the Maryland, Pensylvania and North Carolina boundaries, should be guaranteed to the Commonwealth of Virginia, by the said United States.

Whereupon your committee are of Opinion, that the first condition is provided for by the act of Congress of the 10th of October, 1780. That in order to comply with the second condition so far as has been heretofore provided for by the act of the 10th of October, 1780, it is agreed that one commissioner should be appointed by Congress, one by the State of Virginia, and another by those two commissioners, who, or a majority of whom, should be authorized and empowered to adjust and liquidate the account of the necessary and reasonable expences incurred by the said State. With respect to the third condition, the committee are of opinion, that the settlers therein described should have their possessions and titles confirmed to them, and be protected in the enjoyment of their rights and liberties. Your committee are further of opinion, that the 4th, 5th and 6th conditions being reasonable, should be agreed to by Congress. With respect to the 7th condition, your committee are of opinion, that it would be improper for Congress to declare the purchases and grants therein mentioned, have no effect.

As to the last condition, your committee are of opinion, that Congress cannot agree to guarantee to the Commonwealth of Virginia, the land described in the said condition, without entering into a discussion of the right of the State of Virginia to the said land; and that by the acts of Congress it appears to have been their intention, which the committee cannot but approve, to avoid all discussion of the territorial rights of individual states, and only to require recommend and accept a cession of their claims, whatsoever they might be, to vacant territory. Your committee conceive this condition of a guarantee, to be either unnecessary or unreasonable; inasmuch as, if the land above mentioned is really the property of the State of Virginia, it is sufficiently secured by the confederation, and if it is not the property of that State, there is no reason or consideration for such guarantee. Your committee therefore upon the whole recommend, that if the legislature of Virginia make a cession conformable to this report, Congress should accept such cession." (italics added.)

On October 20, 1783, the Virginia Legislature considered the report of the committee of the Congress and passed an Act authorizing its delegates to Congress, to offer a revised document of cession of her claims to the Ohio Territory. But, again, Congress rejected the offer.

"Whereas the general Assembly of Virginia at their session, commencing on the 20th day of October, 1783, passed an act to authorize their delegates in Congress to convey to the United States in Congress assembled all the right of the Commonwealth, to the territory northwestward of the river Ohio: And whereas the delegates of the said Commonwealth, have presented to Congress the form of a deed proposed to be executed pursuant to the said Act, in the words following:

'To all who shall see these presents, we, Thomas Jefferson, Samuel Hardy, Arthur Lee and James Monroe, the underwritten delegates for the Commonwealth of Virginia, in the Congress of the United States of America, send greeting:

Whereas the general assembly of the Commonwealth of Virginia, at their sessions begun on the 20th day of October, 1783, passed an act, entitled" An Act to authorize the delegates of this State in Congress, to convey to the United States in Congress assembled, all the right of this commonwealth, to the territory northwestward of the river Ohio," in these words following, to wit: "Whereas the Congress of the United States did, by their act of the sixth day of September, in the y:ear 1780, recommend to the several states in the Union, having claims to waste and unappropriated lands in the western country, a liberal cession to the United States, of a portion of their respective claims, for the common benefit of the Union: and whereas this Commonwealth did, on the 2d day of January, in the year 1781, yield to the Congress of the United States, for the benefit of the said states, all right, title and claim which the said Commonwealth had to the territory northwest of the river Ohio, subject to the conditions annexed to the said act of cession. And whereas the United States in Congress assembled, have, by their act of the 13th of September last, stipulated the terms on which they agree to accept the cession of this State, should the legislature approve thereof, which terms, although they do not come fully up to the propositions of this Commonwealth, are conceived on the whole, to approach so nearly to them, as to induce this State to accept thereof, in full confidence, that Congress will in justice to this State for the liberal cession she hath made, earnestly press upon the other states claiming large tracts of waste and uncultivated territory, the propriety of making cessions equally liberal, for the common benefit and support of the union.

Be it enacted by the General Assembly, that it shall and may be lawful for the delegates of this State, to the Congress of the United States, or such of them as shall be assembled in Congress, and the said delegates, or such of them so assembled, are hereby fully authorized and empowered, for and on behalf of this State, by proper deeds or instrument in writing, under their hands and seals, to convey, transfer, assign and make over unto the United States in Congress assembled, for the benefit of the said states, all right, title and claim, as well of soil as jurisdiction, which this Commonwealth hath to the territory or tract of country within the limits of the Virginia charter, situate, lying and being to the northwest of the river Ohio, subject to the terms and conditions contained in the before recited act of Congress, of the 13th day of September last; that is to say, upon condition that, First, the territory so ceded, shall be laid out and formed into states, containing a suitable extent of territory, not less than one hundred, nor more than one hundred and fifty miles square, or as near thereto as circumstances will admit; and, second, that the states so formed, shall be distinct republican states, and admitted members of the federal union; having the same rights of sovereignty, freedom and independence, as the other states. . . That a quantity not exceeding one hundred and fifty thousand acres of land, promised by this State, shall be allowed and granted to the then Colonel, now General George Rogers Clarke, and to the officers and soldiers of his regiment, who marched with him when the posts of Kaskaskies and St. Vincents were reduced, and to the officers and soldiers that have been since incorporated into the regiment. . .

And whereas the said general assembly, by their resolution of June 6th, 1783, had constituted and appointed us the said Thomas Jefferson, Samuel Hardy, Arthur Lee, and James Monroe, delegates to represent the said Commonwealth in Congress, . . .do by these presents convey, transfer, assign, and make over unto the United States in Congress assembled, for the benefit of the said states, Virginia inclusive, all right, title and claim, as well of soil as of jurisdiction, which the said Commonwealth hath to the territory or tract of country within the limits of the Virginia charter, situate, lying and being to the northwest of the river Ohio, to and for the uses and purposes, and on the conditions of the said recited act.

In testimony whereof, we have hereunto subscribed our names and affixed our seals, in Congress, the day of in the year of our Lord one thousand and seven hundred and eighty-four, and of the independence of the United States the eighth." Resolved, That the United States in Congress assembled, are ready to receive this deed, whenever the delegates of the State of Virginia are ready to execute the same."

Vote on March 1 1784

At this point in the record, March 1, 1784, the "United States" as an association doing business as "The United States of America" had obtained from Great Britain all title to territory, under the law of nations, that it had obtained from France by treaty in 1763, and the "State" of Virginia had offered a quit claim deed to the United States in Congress assembled, to its title to that part of said territory which lies northwest of the River Ohio, and the Congress had accepted the deed, by an affirmative vote of nine states present against one negative vote of New Jersey. Three States—New York, Georgia, and Maryland—did not cast votes. But nothing has been recorded yet that deals with the question whether Africans held as slaves by white persons, under the domestic laws of their colonies nee "States," can be imported into the territory of the United States.

Before proceeding further, a pause is in order to consider the political framework in which the Ohio Territory became the property, or "territory," of the "United States" in the legal sense. First, the American colonies subject to the government of Great Britain became "free, independent and sovereign states" by a revolution in which their inhabitants—subjects of the British king and owing allegience to him and his government—threw off their allegience successfully through the process of war. Second, as "States," recognized as such by the Law of Nations, they formed an association among themselves which they styled "The United States of America." Third, in thus associating, they retained, individually, their political status as independent and sovereign states, each being represented in their association by one vote, cast by those persons their legislatures designated as delegates. If, a state designated more than one delegate as its representative, a spilt of view among them meant, it appears, that the State's vote was decided by a majority of delegate vote (e.g., 2 of 3). Fourth, the States, when in session, can form a management committee composed of one delegate from each state—"The Committee of the States"—to manage the Association's affairs when Congress is out of session; and the committee, by the vote of nine states, can take actions which are authorized by the Articles of Confederation, but they cannot, by less than a unanimous vote ratified by each state legislature, alter the fundamental rules of the Association. Last, the Committee of the States can establish subcommittees which report to it. (It is unclear from the text of the Articles of Confederation, under what procedural circumstances the States in Congress assembled might pass a law by simple majority vote.)

Map 1784

In the context of this political plan of conducting the affairs of The United States, the ten states attending Congress on March 1, 1784, established a committee composed of three delegates: Jeremiah Chase of Maryland, David Howell of Rhode Island, and Thomas Jefferson of Virginia, the purpose of which was to prepare a plan for the temporary government of the Ohio Territory.

At this time, the elites running the governments of the States—these being the propertied white men of the separate political communities—probably did not foresee that, in less than five years, political events in Europe would result in the reign of Louis XVI ending in revolution in France, which would bring Napoleon to power as Emporer of the French, and that this would result in Spain, by treaty, returning the vast tract of land west of the Mississippi—originally possessed by France as Lousiana—to France in 1801; and that Thomas Jefferson, the Union's third president, would purchase this territory from Napoleon in 1803. Much less can it be expected that the elites of 1784 foresaw the acquistion of Florida from Spain, or that Mexico would gain its independence from Spain, in 1810, and take possession of Spain's remaining territory on the continent which would lead to the successful revolution of Texas as a province of Mexico, its establishing itself as an independent State, in 1836; its annexation by the United States in 1845, and, finally, the Union's subsequent conquest of Mexico, in 1847. Still, as their delegates sat in the Congress of 1784, the elites, pondering the map of the continent at the fireside, certainly gazed long into the flames springing from the crackling wood, with large ambition kindling in their minds for possession of Spain's territory.

Note: What of these events the elites probably foresaw, can be discerned from reading the correspondence of the Congress's diplomats, men like John Adams, Arthur Lee, Benjamin Franklin, John Jay, and Thomas, who were present in England and France during the years in question.

Whatever the extent of their foresight, the elites certainly must have anticipated—at the time the Committee on the Territory was formed—that the vast expanse of the continent west of the Mississippi, at least some portion of it, would come within the pressure the multipying population of Americans would generate as people spread out of the old States and into the new. And, so, now was the time to at least begin to deal with the presence of the persons held as slaves in America. And they did.

On March 17, 1784, the Committee submitted a report to Congress, written in the hand of Thomas Jefferson, which contained a plan for the formation of a government for the territory Virginia had ceded. The plan called for the Congress to sell lots of land to purchasers and when the number of inhabitants reached 20,000, it would authorize them to form a convention, make a constitution for themselves, and seek admission into the Union as a State, provided that their proposed constitution met five conditions: first, that the new state shall always remain part of the Union; second, that in their persons and property they shall be subject to the government of the Union; third, that they shall be subject to the payment of a part of the war debt of the Union; fourth, that their proposed constitution shall frame a republican form of government; and, fifth, that, after 1808, there shall be no slavery in the state. This latter condition—the prohibition of slavery—was probably the product of either David Howell, or Thomas Pickering, of Massachusetts, who offered a plan to the Congress, in April 1783, by which those who had served as soldiers in the Revolutionary war might be compensated for their service by an allotment of land in the Territory. It is doubtful that the inclusion of the condition came from Jefferson.

Through the remainder of March and the first three weeks of April, 1784, the delegates debated each line of the proposed plan of territorial government, making many motions for amendments and taking votes. On April 19th, they reached the condition concerning the prohibition of slavery and the condition was negated, because only six of the eleven States present voted in the affirmative—the four States present, with large slave populations—Virginia, North Carolina, South Carolina and Maryland—voting in the negative.

vote on April 19 1784

Several weeks after this vote was recorded, Jefferson gave up his seat as a delegate and went to France to serve as ambassador, where he remained until the revolution broke out in 1789. With the slavery prohibition stricken out, the Congress, in the following days of April, approved the Committee's territorial government plan, and the activity of surveying the territory into townships commenced. The surveying proceeded slowly, because the territory was, in fact, entirely occupied by the Native American tribes and these fiercely resisted the efforts of the Americans to invade and take over their lands. The consequence was that Congress, during the following two years, organized a military force, under the command of General Wayne, to confront the Indians in battle and bring them to a treaty agreement in which they ceded their rights to the land to the Union. As these events played out, Rufus King, a delegate from Manssachusetts, moved the Congress to commit the slavery prohibition condition to the Territory Committee for further review. The motion passed, but the condition was not returned to the floor for an up or down vote, until two years later.

Rufus King

Rufus King, a singer of the Constitution

Timothy Pickering, of Mass, to Rufus King, of New York

March 5, 1785

pickering to king

Pickering to King 1785

journal 1785 King motion

King vote 1785

Diagram of congress set up

So, students, here they are at the crisis—the elite white men who were the founders of your country. The political situation will never be as simple as it is now—in 1784-1789—to deal with the Africans as they ought. The Government's frame will never be as simple: Thirteen "States;" thirteen distinct political communities, separated into two groups by two distinct systems of labor; systems that developed at the command of the British monarchs over one hundred and fifty years of their exploitation of America; bringing into being an American community of two million white people and one half million Africans.

So, there the thirteen States sit around their table. Though we can reasonable assume they saw at least a glimpse of the possible future—that somehow events would unfold which would give them possession of the lands west of the Mississippi—for now, this day, this moment, this hour, they know exactly the limit of their nascest country's western border. What were they to do with the undeveloped space in their control? Use it to re-engineer their social and economic systems, while hardly yet established among the nations of the earth; or use it to maintain the status quo?

The record to this point is plain: the States comprising New England, in 1784-89, wanted the spread of slavery stopped in the Union. The first opportunity to make prohibition of its further spread came with the formation of the territorial government for the lands northwest of the Ohio, lands the New Englanders were intensely interested in, as an outlet for their soldiers, for their populations, for their economic system; and so, first with David Howell and, perhaps, Timothy Pickering, and then with Rufus King, they pushed at the table for a consensus that slavery would not be allowed in Ohio.

At the same time, it is true that the New Englanders knew the yet to be developed lands south of the River Ohio were in the economic sphere of influence of the Southern states, and that, therefore, the ultimate political problem was, how to convince the Southern states to restrict slavery to their original territory. Here, all reasonable persons, recognizing the limits of human nature, must see the impossibility of convincing the Southern states not to spread their economic system further westward.

Google earth America

For, what will happen if the South's peculiar system of labor is restricted? reasonable persons must ask. In 1790, Virginia had a white population of 450,000, and an African population of 300,000. North Carolina, a white population of 400,000 and an African population of 100,000. South Carolina, a white population of 200,000 and an African population of 100,000, while the number of Africans residing in the Northern colonies, relative to the size of the white populations, was essentially zero. If the spread of the system of labor of the Southern colonies was arrested in 1790, the question of when the African populations would approach and exceed in numbers the white populations would depend strictly on the relative natural rate at which each population increased over time. Given the human reality that, as with the world at large in 1790, the white population was so infected with the human disease of racism—to such an extent that we, living today, cannot honestly disagree— it was objectively impossible for the two human populations to live in the same political communities as equals in political rights and social relations; that, in such circumstance, the only solution was to get rid of the Africans and that, too, was impossible to do.

The essential human problem, as it was from the beginning when the British monarchs first chose to import the Africans into their American colonies, was that of economics, of the demand for labor. In the 17th century, in America, the heat of the climate in the Southern colonies was, in fact, too intense for the constitution of the ordinary Englishman, an intensity magnified by the rigors of the wilderness to be tamed, and the nature of the agricultural system the British monarchs demanded; a system of large plantation production of tobacco, rice, and grains. So, while the Southern colonies developed over a hundred and fifty years into farming communities on a large scale, the Northern colonies, with small farms in the countryside, developed the major commercial centers of Boston, New York, and Philadelphia, which unsurprisingly attracted the mass of the white immigrants coming into America from Europe: the Scotch-Irish, the Quakers, and the Germans. With the economic opportunities the Northern colonies provided the white immigrants, there was no incentive for them to migrate into the South, to do what? Take a place on a plantation work gang alongside Africans? Some might come South to work in a town at a trade, or manage a shop, or work a small farm, and certainly some did. But the statistics show a huge disparity in numbers between those that did and those that didn't. So, if the Africans magically disappeared from the scene, who would instantly take their place, to keep the economies of the Southern colonies from collapsing? Certainly the British monarchs would have their thumb on the scale in the decision of that. Talk about reparations.

Of course, in the abstract world of thought, as opposed to the feelings of men, we can easily conjure the idea of suddenly emanicipating the Africans in mass, and, like Moses leading his people out of Egypt, move them into the lands west of the Appalachians as free persons, giving them grants of land and support in getting on their feet as farmers on their own. They can take the brunt of the anger of the savages, whose lands they encroach upon, and then the white people can follow in time and they can inhabit the land together, living equally as citizens of the new found community. The wonder of it! And with the Africans gone from the old States, perhaps, the trickle of white migrants will increase in flow, to match the Africans outflow, and the tentative balance of things might hang as it was.

The States, sitting at the table, might have seen the vision; but, who living today can seriously think the vision had any human chance of becoming the reality of 1790? And, if we recognize the objective truth that the chance was non-existent, given the human condition of white men living in the time, then we can easily recognise the chance missed in 1790, means the war that came to the white men of America, in 1861, was brought on by themselves as the only means, by which they could accept the Africans as citizens in their communities. Because, if they could not engineer the political and social transformation the vision entailed, when they were merely thirteen independant states associated together in common defense, how can any serious student think they could do it, when they were thirty-three states overarched by a General Government which could not exercise the necessary power—unless a majority of the politicans representing the general white population of the country, as well as a majority of those representing the States, as such, allowed it?

The Federal Government of the Union

Diagram of  government

Shawnee IndianTwo years passed, with Rufus King's committed version of the slavery restriction hanging in the Committee. During this time, the surveying of the Ohio territory continued, with the States sending military force to conquer the Indians. In 1785, chiefs from several tribes signed a treaty with Rogers Clark at Fort McIntosh, under circumstances that made the transaction a farce. The major tribes—the Shawnee, the Chippawa and the Huron—repudiated the authority of the chiefs to sign away their lands, and heavy fighting continued for ten years, with the Americans getting the worse of it. The Indians were supported by the British, whose armed forces still occupied forts in the area, including at Detroit. In 1791, the Indians, in confederation, were led by Little Turtle into a battle with American forces at the Miami River. Of the 1,000 Little TurtleAmericans engaged in the battle, only 24 escaped the scene. The British, surprised and delighted at the Indian success, made plans to create a Indian State to block American access into the deeper reaches of the territory, but gave up the plan when war with France broke out in Europe. Three years later, the Americans had recovered the initiative and forced the Indians to sign a treaty in which their rights to the land were given up and they were forced to move their homes westward.

Finally, in the summer of 1787, with the Congress in session at New York, the Constitutional Convention convened in Philadelphia and designed a new model of govenment for the "United States of America" in the form of a written constitution. During its course, certain members traveled back and forth, between Philadelphia and New York, keeping the delegates at Congress informed of the drift of events at the Convention. Given the record, it is plain that a major issue, causing the Northern states' members to move slowly, was the question whether the evolving American nation would base its existence upon the political principle Jefferson's preamble to the Declaration of Independence expresses, or, instead, be based on the principle of human slavery. It was in this context, that the record shows the Congress in New York, In April 1787, passing a new version of the Northwest Ordinance, without Rufus King's restriction in it, though two readings; but, when the time for the third reading arrived, in May 1787, the matter was again postponed.

Plainly, much jockeying was going on behind the scene, between the two groups of States. The proposed amended Ordinance—the amendments dealing with the changed circumstances caused by the Indian war, the difficulties of finishing the survey, and issues of alottments for the soldiers—came up again for debate in July 1787 without further change. Then, suddenly, just four days before the amended Ordinance was finally approved by the Congress, the document was radically changed, to include, among other things involving human rights, Rufus King's slavery restriction. In the brief space of four days the Ordinance had been radically rewritten, passed its three readings and was adopted by the unanimous vote of all the states present.

Note: The Journal of Congress shows only eight states voted. Five states appear not present. While the recorded vote constitutes a majority of the States, the text of the Articles of Confederation, under which the Congress was in existence, seems to require the vote of nine states. Perhaps, you smart students can figure it out.

Nw Ordinance 1787

Timothy PickeringIt appears the most probable explanation for the sudden turn the Congress made, just as the Philadelphia Convention was about to produce its draft of the Constitution, is that Timothy Pickering had previously tendered a plan of development for the Ohio Territory which included the slavery restriction. During the subsequent years, as the Indian war raged and the surveying hobbled forward, Pickering organized, with the help of other New Englanders, The Ohio Company. The Company sought investors with the plan of offering to purchase land in Ohio from the Congress and resell it to immigrants from New England. This, the states certainly wanted to do, as it was the means by which they could pay their proportionate share of the debt the Association had incurred in waging the war with Britain.

Under Pickering's plan, it was through the agency of the Ohio Company that land purchases were to be made, upon condition that the slavery restriction be included in the final version of the Ordinance. Whatever arm-twisting went on behind the scene, it seems reasonable to conclude that the reason the Southern states allowed the restriction's insertion, is that, by then, they knew the Northern states would not agree to continue in the Union, unless slavery was prohibited north of the River Ohio, and, as consolation, they had the safety value to the pressure cooker they were living in, at hand with their claims to the land beyond their western borders and south of the Ohio as far west as the Missisippi. Whether they were conscious of the chances their Union might spread someday beyond the Mississippi, who can say? What they did know, is that, as of 1789, just as the French Revolution was exploding in Europe, all the territory of the Union they and their northern partners owned was equitably divided up between the two systems of labor, and, in their minds, this guaranteed the political tranquility of the Union.

Note: A man named Cutler represented the Ohio Company in the negotiations with Congress that occurred between July 9 and July 13, 1787, when the Ordinance was voted on. Cutler's manevuerings, his back and forth trips during this time between New York and Philadelphia, are described in the 1937 publication, History of the Northwest Ordinance of 1787, at pp. 27-30.

As soon as Congress adopted the Ordinance, it was sent to the Convention at Philadelphia. Given the final text of the Constitution it is plain that the members of the Convention drafted certain clauses of the document in light of the slavery restriction the "United States of America" in Congress assembled had accepted as the nation's public policy. It matters not, here, that Georgia, North and South Carolina, in ceding their claims to western territory to "The United States of America," reserved in their grant deeds the condition that the question of slavery was to be decided by the white people who migrated into the subject territories and formed the government. A vast tract of territory, without grant deed restrictions, had come into the possession of "The United States of America," which at the time was a political association of sovereign States; and its constitiuent members, by a majority vote, had adopted the political principle that the States created from the territory, republican in their form, were prohibited by the General Government to establish slavery as their domestic law. No doubt it is because of this fact, that the framers included Article I, Section 10, Clause I: No State can pass any "law impairing the obligation of contracts," as the Ordinance expressly stipulates that it was a "compact" between the states to be formed from the territory and the Congress of the United States.

Other clauses seem easy to interpret in support of the Congress of the Constitution enforcing the slavery restriction in the event new territory comes into the possession of the "United States of America." For example, the grant of power to Congress to prohibit the importation or migration of persons into the states of the Union (Art I, Sec. 9); the needful rules for the Territory clause (Art IV, Sec 3); and the power granted Congress to admit new states (Art IV, Sec 3)—the opinions of the Supreme Court justices, in In Re Dred Scott, notwithstanding. But these are mere words one uses to conjure abstractions, and abstractions in the course of human history must always give way to the James Madison"absolute necessity of the case; to the great principle of self-preservation; to the transcedent law of nature, which declares that the safety and happiness of society are the objects at which all political institutions aim, and to which all such institutions must be sacrificed." (Madison, The Federalist, No. 30.) Society in enclaves, with their tribal habits and customs? Or a political society of Americans who believe in freedom: American freedom learned the hard way. Madison wrote it right on.

Joe Ryan