Slave Nation (26 page)

Both Congress and the Virginia legislature assumed that a modification of the cession agreement was necessary to effectuate the ordinance. Although the formal legal relation between the cession agreement and the ordinance was never determined, it was assumed that Virginia had veto power over the ordinance. While the vote of the Virginia delegates to the Constitutional Convention in support of the ordinance might have been considered idiosyncratic or accidental by some historians, the ratification by the legislature most certainly was done with full knowledge of its antislavery character. The absence of debate about the matter in Virginia suggests that the division of the territory had been agreed to on grounds understood and accepted by the Virginians.
⁴³

On August 7, 1789, the First Congress sitting under the new Constitution adopted as Chapter VIII of the Statutes of the United States, appearing in 1 Stat. 50, “An act to provide for the government of the territory northwest of the river Ohio.” The introductory clause read:

Whereas in order that the ordinance of the United States in Congress assembled, for the government of the territory northwest of the river Ohio may continue to have full effect, it is requisite that certain provisions should be made, so as to adapt the same to the present Constitution of the United States.

Those provisions required the governor to report to the president rather than Congress, provided for presidential appointment and removal of officers with senatorial advice and consent, and for the secretary to act in the absence of the governor. There was no debate on this implicit ratification of the ordinance, which brought it into line with the new Constitution by redefining the chain of authority stipulated in the Articles of Confederation.
⁴⁴

The same Congress, in 1790, again ratified the Northwest Ordinance by making it applicable to territories south of the Ohio, with one fundamental difference—slavery was permitted. This difference is further evidence of the understanding that the Northwest Ordinance drew a line on slavery in the United States. The language used to accomplish this result was as obscure as that used in the Constitution concerning slavery.

The inhabitants…shall enjoy all the privileges, benefits, and advantages set forth in the ordinance of the late Congress for the government of the territory…northwest of the river Ohio. And the government of the said territory shall be similar to that which is now exercised in the territory northwest of the Ohio; except so far as is otherwise provided in an act of Congress of the present session, entitled “An act to accept a cession of the claims of the state of North Carolina to a certain district of western territory.”
⁴⁵

The act accepting cession from North Carolina had been approved on April 2, 1790.
⁴⁶
It approved the “deed of cession” from North Carolina that contained the following condition:

The territory so ceded shall be laid out and formed into a state or states, containing a suitable extent of territory, the inhabitants of which shall enjoy all the privileges, benefits, and advantages set forth in [the Northwest Ordinance]…
provided always that no regulation made or to be made by Congress shall tend to emancipate slaves.
⁴⁷
(emphasis added)

When the cession act was considered in the House of Representatives on March 26, 1790, the Annals of the Congress reported that:

A condition in the Act of Cession, relative to the emancipation of slaves, that Congress should not (as in the act for the government of the western territory) provide for their freedom occasioned some debate; an amendment was prepared and debated, but not adopted.
⁴⁸

With these few words, the First Congress under the Constitution confirmed that the line between slave and free territories had been drawn at the Ohio. It also decided, in response to a petition by Ben Franklin on behalf of the Pennsylvania Society for the Abolition of Slavery, that

Congress have no authority to interfere in the emancipation of slaves, or in the treatment of them within any of the states; it remaining with the several states alone to provide any regulations therein, which humanity and true policy may require.
⁴⁹

But the territories were different. There, Congress could and did regulate slavery, until the political will failed in 1854. In the Kansas-Nebraska Act, Congress declared that popular sovereignty would decide whether a state would be free or slave. The Civil War was then only seven years away.
⁵⁰

Whatever the problems and shortcomings in the northwest in connection with slavery in future years, the founding fathers had enacted the first blanket prohibition of slavery in the history of the world covering an area of two hundred sixty thousand square miles, or one-third of the land area of the United States at that time.
⁵¹
This was agreed to by the South for the same reason that had motivated their assumption of the leadership of the Revolution in 1774; the protection of slavery under the changed conditions and attitudes about slavery that had emerged since 1774 when John Adams made the deal to protect slavery at the beginning of the Revolution.

From 1787 on, the story of the interpretation and administration of the Northwest Ordinance is confused. In the early nineteenth century, political figures paid homage to the ordinance as a reflection of the higher law of the Magna Carta and the Declaration of Independence. Ultimately the Free Soil Party and the Republican Party emerged.
¹
At the same time, administrators, judges, and congressional committees narrowly construed the antislavery provision, slave owners evaded or ignored it, and in 1857 the Supreme Court declared it to have no legal effect.
²
Nonetheless, the ordinance worked to channel pro-slavery settlers south and west of the territory, and encouraged those who were antislavery to settle in it.
³

Indeed, it is impossible to imagine the Civil War without the Northwest Ordinance. Ohio, Indiana, and Illinois would have become slave states without it—it was a near thing.
⁴
The North could not have pursued a war without those states.

Beyond that, a Lincoln would not have emerged from a slave state. Lincoln’s father, a farmer in Kentucky, crossed the Ohio into Indiana in 1816 when Lincoln was seven, partly because of religious objections to slavery, partly because he did not want to compete with slave labor, and partly because, by virtue of the Northwest Ordinance, land titles were clearer in the territory than where the southern land occupancy system had generated uncertainty.
⁵

The enforcers of the Northwest Ordinance were realestate speculators with lands in Kentucky and west of the Mississippi, who advised people moving west that the ordinance would prevent them from using or obtaining slaves, so they should steer clear of the territory. The result was that, while southern Ohio, Indiana, and Illinois were settled in part by Virginians and later Kentuckians, they never achieved the political mass that would enable them to overturn the antislavery principles of the ordinance, although they tried. Meanwhile the prospect of a slave-free state attracted those who opposed slavery.

One such person drawn to the territory because of the antislavery provision in the Illinois constitution was the extraordinary Virginia aristocrat Edward Coles. From an old Virginia family, Coles was a cousin of Dolley Madison and served for six years as President James Madison’s secretary.

He took Thomas Jefferson’s Declaration of Independence seriously. In 1814, six years after the end of Jefferson’s presidency, he initiated a famous correspondence.
⁶

He wrote to Jefferson:

My object is to entreat and beseech you to exert your knowledge and influence in devising and getting into operation some plan for the gradual emancipation of slavery.…In the calm of this retirement you might, most beneficially to society, and with much addition to your own fame…put into complete practice those hallowed principles contained in that renowned Declaration, of which you were the immortal author.

Jefferson replied in a long letter, which can be summed up in the following:

No, I have overlived the generation with which mutual labors and perils begat mutual confidence and influence. This enterprise is for the young, for those who can follow it up and bear it through to consummation. It shall have all my prayers, and these are the only weapons of an old man.

Coles wrote back:

Your time of life I had not considered an obstacle to the undertaking. Doctor Franklin, to whom, by the way, Pennsylvania owes her own early riddance of the evils of slavery, was as actively and as usefully employed on as arduous duties after he had passed your age as he had ever been at any period in his life.

These brief extracts hardly do justice to the courtly and polite exchange between Coles and Jefferson. Coles carried out his plan, moved to Illinois, freed his slaves, gave them one hundred sixty acres each, and offered supportive activities while they adjusted to their new-found freedom. He was elected governor and successfully fought off a call to repeal the prohibition on slavery in the Illinois Constitution that had been required by the Northwest Ordinance. The vote was 6,822 against and 4,950 in favor. By a margin of 1,872 votes, the people of Illinois confirmed the antislavery provision in their constitution.

Alexis de Tocqueville, in his 1835 visit to America, traveled the Ohio and reported on the result of drawing the line between slavery and freedom, in a way somewhat akin to the recent Western view of the Iron Curtain:

Upon the left bank of the stream the population is sparse; from time to time one descries a troop of slaves loitering in the half-desert fields; the primeval forest reappears at every turn; society seems to be asleep, man to be idle, and nature alone offers a scene of activity and life. From the right bank, on the contrary, a confused hum is heard, which proclaims afar the presence of industry; the fields are covered with abundant harvests; the elegance of the dwellings announces the taste and activity of the laborers; and man appears to be in the enjoyment of that wealth and contentment which is the reward of labor.
⁷

True or apocryphal, the Northwest Ordinance, by creating a slave-free area, broke the power of slavery. A populace evolved in the area who, because they did not exploit slave labor, were not blinded by self-interest into ignoring its evils.

The history of the United States from the Northwest Ordinance to the Civil War revolved around the principle of 1787 that Congress would divide the nation into slave and free areas and states. The details changed as the United States expanded to the west. With the Louisiana Purchase in 1803, the territory of the country more than doubled and there was no limitation on slavery in the new lands. In 1820, as a part of a deal known as the Missouri Compromise, Missouri was allowed to come in as a slave state while Maine came in as a free state, and the no-slave zone of the northwest territory was continued west of the Mississippi. In 1854, the national political will broke down; Congress left the choice of free or slave territory to be determined by the people on the ground. “Popular sovereignty” meant competition that was sometimes bloody between supporters of free states and those of slave states. The spirit of compromise and political accommodation which had held the country together for eighty years (1774–1854) had lost its vitality. The result was a substitution of war for politics.

The Supreme Court, in the
Dred Scott
decision of 1857, delivered the
coup de gras
to the political compromise over slavery in the Constitution and Northwest Ordinance of 1787, holding that Congress did not have the power to draw any line between free and slave states.
⁸
War was inevitable, unless slavery was accepted as the nationwide institution it had been between 1774 and 1787. By the 1850s, northern antislavery attitudes, strengthened by the experience of life under the Northwest Ordinance, made that impossible. The
Dred Scott
decision also made compromise by the South impossible, because the South had won the right to extend slavery where it wished. Therefore, it would no longer compromise.

The Civil War was in part due to Chief Justice Taney’s failure in
Dred Scott
to appreciate two major events. The first was Mansfield’s decision in the
Somerset
case. No one reading that decision could have written that Negroes had been regarded, as Taney wrote,

So far inferior that they had no rights which the white man was bound to respect.…And in no nation was this opinion more firmly fixed or more uniformly acted upon than by the English government and English people.
⁹

Taney simply ignored Somerset’s case in stating his conclusion about the English law.
¹⁰
It is still standard practice to rely on the English law background to understand and explain the context of American legal decisions. Taney’s second error was in ignoring the understanding of 1787, which was confirmed by eight states at the Continental Congress, by the Constitutional Convention, by Virginia’s amending its act of cession, and by the First Congress in 1789–1790, which sharpened the line between slave and free territories.

Ultimately, the Civil War resulted from the southern decision to try for a second time to preserve slavery by seceding from a government which challenged it. Secession from Britain had worked the first time, extending slavery an additional thirty years beyond its abolition in the British Empire.

This dream of a southern slave empire fueled the secessionist movement.
¹¹
The dream ended at Gettysburg and Vicksburg in early July, 1863, the anniversary month of the Declaration of Independence, the Northwest Ordinance, and the French Declaration of the Rights of Man, which many Americans viewed as an expansion of the colonial revolution against British monarchy.