Slave Nation (36 page)

The ordinance, which was later adopted, provided for surveys laying out township squares. The proposed land ordinance of 1785, April 12, did address another problem—education in the territories—that would become entwined with the slavery issue in the Northwest Ordinance.
JCC
Vol. 28, 250–4 “There shall be reserved the central section of every township for the maintenance of public schools and the [section] immediately adjoining the same to the northward, for the support of religion, the [profits] arising therefrom in both instances to be applied forever according to the will of the majority of male residents of full age within the same.”

35
. Votes: Aye NH, MA, RI, CN, NY, NJ, PA, MD (8); No. VA, NC, SC, GA(4). Ernst,
Rufus King
, 55. Counts the votes as 8–3, with Virginia and Carolinas opposing.
JCC
Vol. 28, 164. Ernst also says that eighteen of the twenty-six delegates present supported the motion in committee. (At 55, cites
JCC
, Vol. 28, 164) He adds, “These features (the prospective application and the fugitive slave clause) were designed to win support from the slave states, but Congress still took no action. Recognizing that the committee revisions were unacceptable to the northern delegations, King refrained from pressing the issue. His political sense told him the time was not yet ripe for action. Original motion in “Papers of Constitutional Convention,” No. 31, f.327,
National Archives
; He also cites “King to Pickering, Apr. 15, 1785,”
King Papers
, N.Y. Hist. Soc.

36
. Other members were David Howell [RI] and William Ellery[RI].

37
.
JCC
, Vol. 28, 239, April 6, 1785. The Articles appeared to require only seven votes for the adoption of this resolution. The language in boldface in the proviso may have been derived from the Pennsylvania Law of 1780,
1 Laws of the Commonwealth of PA
, 492, 496; 2
Laws of the Commonwealth of PA
, 443-446. 2
Carey & Bioren’s Laws
, 246, Sec. 3, stated: “That all persons, as well Negroes and mulattoes as others, who shall be born within this state from and after the passing of this act shall not be deemed and considered as servants for life or slaves; and that all servitude for life or slavery of children in consequence of the slavery of their mothers, in the case of all children born within this state from and after the passing of this act as aforesaid, shall be and hereby is utterly taken away, extinguished, and forever abolished.” Section 11 provided that the act “shall not give any relief or shelter to any absconding or runaway Negro or mulatto slave or servant who has absented himself or shall absent himself from his or her owner, master or mistress, residing in any other state or country, but
such owner, &c., shall have like rights and aid to demand, claim, and take away his slave or servant as he might have had in case this act had not been made
.” [emphasis added] This proviso was repealed in 1826. John Codman Hurd,
The Law of Freedom and Bondage in the United States
, (Original,1862; Reprinted, New York: Negro Universities Press, 1968) 68–69. The proviso may have been intended to comply with the anti-
Somerset
provision of the Articles of Confederation.

38
. He initially expected the motion to pass. See “Grayson to Madison, May 1, 1785,” Smith,
Letters of Delegates
, Vol. 8, 109–10. At the final debate on the ordinance, at the third reading, May 18–20, 1785, (
JCC
, 375), states present were NH, MASS, CN, NY, NJ, PA, MD, and VA—eight states in all. If seven votes were required to include the anti-slavery clause and MD voted affirmatively, the motion would have passed, with only VA voting against, assuming the previous voting pattern on the motion to consider the King proposal reflected views on the merits. However, MD had voted to consider the King motion by a 2–1 vote. (March 16) If one of those supporters had been absent, MD vote would not have been in the affirmative, and the motion would have lost.

39
. The more usual way of accomplishing the result sought by the boldface language would be by repealing the 1784 ordinance. This was done in the Northwest Ordinance of 1787 which repealed the 1784 ordinance only with respect to the northwest territory.

40
. Wager Swayne, “Monroe to Jefferson, January 19, 1786,”
The Ordinance of 1787 and the War of 1861
(New York: C. G. Burgoyne, 1892) 39

41
.
JCC
Vol. 33, 131-35, March 24, 1786; Barrett,
Evolution of the Ordinance
, 33–38. The report was considered by a committee of Congress in March, and again in May, 1786. Another committee made a similar recommendation, and included a plan for territorial government.
JCC
Vol. 30, 251, May 1786.

42
.
JCC
Vol. 30, 390-94, July 7, 1786

43
. For the view that Monroe never got to the northwest territory, see Jorge M. Robert, “James Monroe and the Three to Five Clause of the Northwest Ordinance,”
http://www.earlyamerica.com/review/2001_summer_fall/monroe.html

If this view is correct, it is possible that the letter was intended to lead to a reduction of the North’s advantage in any expansion of the union that Jefferson’s eight to ten states would have created north of the Ohio River.

44
. Members of the Committee were William Samuel Johnson, William Henry, Charles Pinckney, Nathan Dane, and Melancton Smith.
JCC
Vol. 31, 669; Barrett,
Evolution of the Ordinance
, 42–43

45
.
JCC
Vol. 31, 669, September 19, 1786.

(1) it applied to all territories; (2) Congress to appoint governor secretary, five judges with common law and chancery jurisdiction; (3) to secure personal liberty and property of inhabitants and other purchasers; (a) preserve habeas corpus and trial by jury (b) intestate succession to children in equal parts regardless of sex; free alienation during life (c) same rules for non-resident proprietors real estate (d) governor commands militia, appoints magistrates, lay out counties and townships (e) free male inhabitants to elect representatives to general assembly, property qualifications for voting and serving (f) mechanics of government (g) inhabitants subject to federal debt, apportioned by same rules as to other states (h) when achieve thirteenth of citizens of original states, to be admitted with congressional consent, on equal footing with original states.

This bill had a second reading on May 9, 1787.
JCC
, Vol. 32, 274-75. Wednesday, May 9, 1787. The draft appearing on 281-3 reflects both the form of the ordinance on May 9, and the form after the debates on May 10 and July 9.

46
. It contained the following provisions:

JCC
Vol. 32, 281, Wednesday, May 9, 1787:

1. Congress to appoint a governor, a secretary, and three judges with common law jurisdiction, following earlier drafts 2. Inhabitants entitled to habeas corpus and trial by jury, as in the September, 1786 draft 3. Governor and judges to adopt such laws of the original states, civil and criminal, as they think best suited, to be effective until the organization of a general assembly, unless disapproved by Congress 4. Governor to be commander in chief of militia, appoint all non-general officers, general officers appointed by Congress, appoint magistrates and civil officers, lay out the territory into counties and townships, as in the 1786 draft 5. When have five thousand free male inhabitants, may elect representatives to a general assembly. Electors to have two years residence and fifty acres freehold or life estate, Representatives to have two hundred acres fee simple, from 1786 draft 6. General assembly to consist of governor, legislative council, and house of representatives; cannot affect lands of United States or tax non-resident proprietor’s lands higher than residents, as in 1786 bill. 7. Governor can convene, prorogue, and dissolve assembly, as in 1786 draft 8. Inhabitants subject to part of federal debt apportioned according to common apportionment measure used in other states, as in earlier drafts going back to 1784

On July 9, the bill did not include the provision for the “equal footing” admission of new states when they had one-thirteenth the population of the original states, which had been in the 1786 draft. The “equal footing” issue was before the Constitutional Convention in Philadelphia in early July.

47
. H. James Henderson,
Party Politics in the Continental Congress
(NY: McGraw Hill, 1974) 413

C
HAPTER
10
D
EADLOCK
O
VER
S
LAVERY IN THE
C
ONSTITUTIONAL
C
ONVENTION

1
. See
Chapter 8

2
. Farrand,
Framing of the Constitution
, 7

3
. Statuary,
Shays’s Rebellion
, 120–134

4
. In addition, the Virginia Delegation included John Blair and James McClurg.

5
. Proposals and amendments were made in committee of the whole, subject to the approval by the convention itself, thus not officially committing members until the final vote taken after a committee of detail had polished the language. The actual committee of detail was Gouverneur Morris of Pennsylvania. See Richard Brookhiser,
Gentleman Revolutionary: Governeur Morris, the Rake Who Wrote the Constitution
(New York: Free Press, 2003) 85–93. See Thornton Anderson,
Creating the Constitution: The Convention of 1787 and the First Congress
, 50–58 (University Park, PA: Pennsylvania State University Press, 1993)

6
. In 1783, as a result of a compromise proposed by Madison, Congress had adopted the formula that each slave should be counted as three-fifths of a person in measuring the population for valuation purposes.
JCC
Vol. 24, 222-4. The negotiations leading to the formula were described by Madison in his notes of the Congress.
JCC
Vol. 25, 948-9. A committee had recommended that two slaves be rated as equal to one freeman for determining contributions by each state to the federal budget. In the haggling that followed:

Mr. Wolcott was for rating the slaves 4 to 3. Mr. Carrol as 4 to 1. Mr. Williamson wouldn’t play. He considered slaves “an encumbrance to society instead of increasing its ability to pay taxes.” Mr. Higginson as 4 to 3. Mr. Rutledge would go along with 2 to 1, but believed 3 to 1 was “a juster proportion.” Mr. Osgood could not go beyond 4 to 3

A vote was taken on rating them as 3 to 2, and it lost. Voting for it were NH, CN, NJ, PA, DE (5), against were MASS, MD, VA, NC, SC. RI was divided. The southern states plus Massachusetts refused to consider a slave as equal to 66 percent of a free man.

“After some further discussions on the report in which the necessity of some simple and practicable rule of apportionment came fully into view, Mr. Madison said that in order to give a proof of the sincerity of his professions of liberality, he would propose that slaves should be rated as 5 to 3. Mr. Rutledge seconded the motion. Mr. Wilson (PA) said he would sacrifice his opinion to this compromise. Mr. Lee (VA) was against changing the rule, but gave it as his opinion that 2 slaves were not equal to 1 freeman.” The vote was yes, NH, NJ, PA, MD, VA, NC, SC. No: RI, CN.

7
. Farrand,
Records
, Vol. I, 35-36. The “diversion” of course would have involved an early consideration of not counting slaves to measure representation. For taxation purposes, the slave owners were against counting slaves because that would increase their taxes. The non-slave-holding states supported this approach because it would reduce theirs. The interests of slave states and non-slave states were reversed when applied to the question of representation. In that situation, the southern states would gain enhanced votes by counting slaves, even though slaves could not vote.

8
. Ibid. 20, Resolution 2.

9
. In the end, the state legislatures selected their senators until the twentieth century.

10
. In the debates, the body we know as the House of Representatives was called the first or lower house, and the Senate was called the second house. For convenience, we use the names (House and Senate) later attached to these two bodies.

11
. Farrand,
Records
, Vol. I, 193

12
. Ibid. 201. See Wills,
Negro President
, 51–61 for a discussion of the origins and consequences of the three-fifths rule.

13
. Farrand,
Records
, 193. Six against (MA, PA, VA, NC, SC, GA); five for (CN, NY, NJ, DE, MD). The only proposal then under consideration concerning the makeup of the Senate was that of Virginia, which would allow the House to elect the senators. If the slave states had the benefit of the threefifths rule in the House, that would enhance their weight in voting for senators. The resolution of these issues was reported to the Convention on June 13, Farrand,
Records
, Vol. I, 227-229. On June 14, Randolph and Patterson moved for a day’s adjournment so that the report could be further considered. Farrand,
Records
, Vol. I, 240. The outcome of the consideration was the Patterson plan presented the next day.

14
. Farrand,
Records
, Vol. I, 242.

15
. Ibid. 313

16
. Ibid. 445-6

17
. Ibid. 450–452. Isaacson,
Benjamin Franklin
, 445–60, eloquently describes Franklin’s role at the Constitutional Convention.

18
. Isaacson,
Benjamin Franklin
, 451, 453 (Madison). The convention had no funds for prayer, and did not vote on Franklin’s proposal. See Bowen,
Miracle at Philadelphia
, 117–40 for a vivid description of the crucial nature of the debate during this period and the frustration level at the time.

19
. Farrand,
Records
, Vol. I, 460-461

20
. Ibid. 468–9. The reference to “this part of it” presumably refers to the states south of Pennsylvania. Ellsworth’s statement contained the germ of the idea which would grow quickly—dividing the nation “somewhere about” Pennsylvania. The Ohio River, it will be remembered, rises in Pittsburgh, from the conjunction of the Monongahela and the Allegheny. The Ohio River was the southern border of the northwest territory.