Slave Nation (22 page)

While this inconclusive squabbling continued in Philadelphia, the problem of slavery which threatened the existence of the union at the Convention in Philadelphia was being resolved at the Congress in New York.

While the Constitutional Convention in Philadelphia staggered to a “dead stop,” the Continental Congress in New York came to life. The five delegates arriving from the Convention in Philadelphia created a quorum so the Congress could make decisions. On July 9, 1787, the Congress returned to the land ordinance that it had considered back in May. The ordinance, which related to the entire western territory, was referred to a new committee consisting of Richard Henry Lee and Edward Carrington from Virginia, Nathan Dane from Massachusetts, Melancton Smith of New York, and John Kean of South Carolina.
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Nathan Dane, the drafter of the ordinance, described what happened next in a letter to Rufus King of Massachusetts three days after the event:
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There appears 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 effects 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 enclosed and the Ohio purchase; the former you will see is completed, and the latter will probably be completed tomorrow. We met several times and at last agreed on some principles—at least Lee, Smith, and myself.
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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.

The committee took only two days to return with a much-expanded proposal. Part of one of those two days was taken up with a meeting by Carrington, King, and Dane with Manasseh Cutler concerning his proposal from the Ohio Company to buy land in the territory.
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This short time seems hardly enough to develop the conceptions that went into the Ordinance and reduce them to acceptable language. This supports the view that the decision about slavery had been made earlier in Philadelphia, to be implemented in New York.

The draft was prepared by Nathan Dane of Massachusetts, Richard Henry Lee of Virginia, and Melancton Smith of New York.
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Smith was both strongly antislavery and a land speculator who was involved in the arrangement by which the Ohio Company’s proposed purchase of 1.3 million acres escalated to 6 or 7 million.
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The Dane-Lee-Smith draft of the ordinance was given its first reading on July 11, had its second reading on July 12, and was adopted on July 13.
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The first critical step taken was to change the name of the ordinance from “An ordinance for the government of the western territory until the same shall be divided into different states” to “An ordinance for the temporary government of the territory of the U.S. NW of the River Ohio.”
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All previous land ordinances had encompassed all of the territory, north and south of the Ohio, acquired or to be acquired by the United States. This was the first time that a territorial ordinance was limited to the north of the Ohio River. Restricting the land ordinance to the northwest meant that slavery continued to be lawful south of the Ohio.
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This change is another indication that the decision to protect slavery north of the Ohio had emerged to address the crisis at the Constitutional Convention in Philadelphia.

It appeared to respond to the pressures to create a slavefree northwest arising from both the Convention and the Ohio Company speculators who had been seeking slavefree areas for development since 1783. The draft produced by the new committee contained fourteen significant elements in addition to the provisions already before the Congress, some of which had been considered earlier but had never been organized into a single coherent program.
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In addition to those rights stated in the earlier draft—jury trial, habeas corpus, and non-discriminatory taxation of non-resident proprietors—the new provisions adopted what we today would call “fundamental rights” as the basis for the territorial government and the state governments that would later emerge.
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Dane, on behalf of the committee, moved the provisions of the ordinance one by one. He had not intended to introduce the antislavery provision until the rest of the ordinance had been approved, and even then he was doubtful. He knew that only Massachusetts of the northern states was present, and that all five of the southern states that had a perfect record of opposing every measure that cast doubt on slavery were also present.
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He thought— with good reason—that the antislavery provision would suffer the same fate as Jefferson’s proposal of 1784 and King’s proposal in 1785.
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But, after the rest of the ordinance had been adopted, Dane was surprised, or more likely astounded. He wrote to King:

When I drew the ordinance (which passed, a few words excepted, as I originally 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.
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His letter states that he heard southern representatives “favorably disposed” about an antislavery provision. We do not have a record of who spoke in favor of the provision, but history points directly at Richard Henry Lee. He had often been the spokesman for Virginia’s positions on legislative issues. He was probably supported by fellow Virginian Edward Carrington, and by the antislavery Melancton Smith of New York. Representatives of the other slave states who had just been informed of the new southern position on slavery may have remained silent. But that was enough for Dane. At that point, he moved the article, “which was agreed to without opposition.”

From his letter to King, it is clear that Dane had not been informed of the southern plan. His letter quoted here strongly suggests that the southerners had already agreed among themselves to support the proposal. This collaboration is further evidence that the decision to create a no-slave zone was a serious response to the northerners’ concern about slavery at the Philadelphia convention.

Lee and delegates from Philadelphia may not have told Dane about the plan, because they needed time to persuade the southern delegates to give up slavery north of the Ohio River. If their plan had not worked, they would not have been embarrassed by Dane’s awareness of their effort. The important point for the southerners in New York was not to debate the proposal, but to adopt it so that the northerners in Philadelphia would understand that they had won a slave-free area north of the Ohio, and perhaps save the union from dissolution.

The prohibition on slavery, including the provision for return of fugitive slaves reads:

There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes whereof the party shall have been duly convicted: provided, always, that any person escaping into the same, from whom labor or service is lawfully claimed in any one of the original states, such fugitive may be lawfully reclaimed and conveyed to the person claiming his or her labor or service as aforesaid.
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Dane’s clause was effective immediately, allowing the Ohio Company to encourage northern settlers to go quickly into Ohio country, without fear of having to compete with slave labor or of living in a slave state. In that sense, the ordinance was stronger than the earlier versions proposed by Jefferson and King that allowed slavery in the territory until 1800.
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At the same time, it was limited to protecting the ownership rights of masters only in the original states. This demonstrates that the clause was essentially copied from King’s 1785 proposal that was never voted upon.
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The clause says nothing about the status of slaves escaping from any new states or territories that might be created in the future. These issues had arisen sharply at the Convention in Philadelphia, but the clause was not modified to consider the future. This suggests the haste in which the provision had been taken from King’s proposal.

Dane’s antislavery clause would have an immediate impact on persons who were considering bringing slaves into the territory. Their property would be at risk. Given the choice, slave owners would—and did—go into the southwest or across the Mississippi where their “property” was secure.
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Thus the clause—by its existence rather than its administration—was to some extent self-executing.
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The ordinance passed only because of the votes of the southern slave-holding states. The eight states voting for the ordinance were Massachusetts, New York, New Jersey, Delaware, Virginia, North Carolina, South Carolina, and Georgia. The ordinance was adopted with equal votes from non-slave states and from all of the major slave states.
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Seven votes were needed for passage. If only two of the slave states had voted no, been divided, or had not appeared, the ordinance would not have passed. Three years earlier, Virginia and South Carolina had voted against Jefferson’s antislavery amendment, and North Carolina was divided, which meant a “no” vote.
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Two years earlier, Virginia, the Carolinas, and Georgia had opposed even considering King’s 1785 motion to impose a prospective limitation on slavery. Thus three of the slave states, Virginia, North Carolina, and South Carolina, changed their votes from 1784, and those states plus Georgia changed their votes from 1785 to assure the creation of a “free” northwest. Had the slave states maintained the positions they held in 1784 and 1785, the ordinance would have failed.

Virginia played a crucial role in the adoption of the ordinance. Two Virginia delegates (Lee and Hardy) had voted against consideration of King’s motion in 1785. In 1787, Lee had changed his vote of 1785, and Carrington had replaced Hardy.
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Virginia supported a stronger antislavery resolution in 1787 than the one it had opposed in 1785.
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In addition to the fugitive slave clause copied from King’s 1785 proposal, there were other provisions in the new ordinance that were sweeteners for gathering support from the southern delegates. The statement supporting freedom to navigate of the Mississippi would help the southwesterners in their opposition to a proposed treaty that would have

allowed Spain to close the Mississippi at New Orleans for many years.
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The proposal for justice for the Native Americans may have helped to bring Benjamin Hawkins of North Carolina on board. Hawkins had vast experience in negotiating with the Native Americans, and would later become an “Indian Agent” for the southwest territory.

Nathan Dane of Massachusetts and Edward Carrington of Virginia believed that the initial settlers of the northwest territory would be New Englanders. Dane wrote:

I think the number of free inhabitants, sixty thousand, which are requisite for the admission of a new state into the confederacy, is too small; but having divided the whole 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 [Ohio] 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 and equal chance of its adopting eastern politics.
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The term “eastern politics” included opposition to slavery.
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The Northwest Ordinance was and is considered the finest hour for the often maligned Continental Congress, and uncertainty concerning the reasons for its adoption still exists.

Credit has been claimed for Nathan Dane of Massachusetts who drafted it, for Timothy Pickering who promoted it, for Thomas Jefferson who drafted the 1784 ordinance, and for Manasseh Cutler of the Ohio Company who lobbied for land in the Ohio region.
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Dane wrote that Richard Henry Lee was of “considerable importance” in shaping the proposal. They all represented forces at work in forging conditions for the ordinance, but none of them have been credited with the underlying concept of adopting an ordinance applying only to the land north of the Ohio.

Duncan MacLeod, in his penetrating analysis in
Slavery, Race, and the American Revolution,
ultimately considered that the ordinance was a sort of “accident” because its passage did not fit the pattern of prior or subsequent events.
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Some historians consider the Northwest Ordinance to have been a “tacit agreement,” or an unintended policy, permitting slavery south of the Ohio.
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But there was nothing tacit about it. Both supporters and opponents of slavery understood—and acted upon the understanding— that slavery was lawful in all the territory of the United States unless and until a government altered its status.
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As Edward Coles said in 1856: