USA > Indiana > Indiana, a redemption from slavery > Part 15
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The business of purchase was undertaken by General Parsons alone. He proceeded to New York, and on May 9, 1787, the same day on which the Monroe plan had its second reading, he placed before Congress a memorial asking that "a Tract of Country within the Western Territory of the United States at some conven- ient Place may be granted them at a reasonable Price,
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upon their paying a Sum not exceeding One Million of Dollars nor less than five Hundred Thousand Dollars, and that Such of the Associators as by the Resolutions of Congress are intitled to receive Lands for their military Services, may have their Lands assigned them within the aforesaid Grant." This memorial, in the handwrit- ing of General Parsons, shows no objection to the ordi- nance then before Congress, yet the conclusion is irresist- ible that it stopped action on the ordinance. The exact connection between the two, however, is not clear. The theory advanced by Mr. Bancroft, that now for the first time there appeared a certainty of actual settlement,1 is not tenable, for the projectors of this company had been trying to obtain western lands for four years, and many others were engaged in the same effort. As far back as November 3, 1784, George Washington wrote to Jacob Read, a member of Congress: "Such is the rage for speculating in and forestalling of lands on the northwest of the Ohio that scarce a valuable spot, within any tolerable distance of it, is left without a claimant. Men in these times talk with as much facility of fifty, an hundred, and even five hundred thousand acres, as a gentleman formerly would do of one thousand. In de- fiance of the proclamation of Congress, they roam over the country, on the Indian side of the Ohio, mark out lands, survey, and even settle on them. This gives great discontent to the Indians, and will, unless measures are taken in time to prevent it, inevitably produce a war with the Western tribes." In the spring of 1785 General Harmar had caused several thousand actual settlers to be expelled from the country northwest of the Ohio.2
1 Hist. of Const., vol. ii. pp. 109, 110.
2 St. Clair Papers, vol. ii. pp. 3, 4, 5, note.
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There was unquestionably a desire to distinguish be- tween soldiers and other original holders of certificates and those who had bought up these securities for specu- lative purposes. One of Colonel Pickering's chief aims, as appears from his correspondence, was to secure the greatest possible benefit to the soldier and the actual settler, and, by the way, it was his connection with the Ohio Company that led to his correspondence with Gerry and King, for he mentions that the former had expressed a desire to purchase lands through the com- pany. The desire to discriminate against speculators need not have interfered with the ordinance, for it could have been attained as well under the Monroe plan as under the one adopted.
The most plausible explanation is that a majority of Congress decided to abandon the old struggle over the question of the cessions by the Southern States, and to provide for an immediate opening of the territory north of the Ohio, leaving that south of the river to be pro- vided for in the future. They were impelled to this by the financial needs of the country, the prospect of greatly reducing the public debt by one direct transaction, and the increase of value in adjoining lands by the establish- ment of a desirable colony. The establishment of this colony also created a necessity for the immediate enact- ment of some laws, especially as to the conveyance of land. Hitherto it had been easy to provide for the prop- erty rights of the French settlers by preserving to them their " laws and customs," and they were the only set- tlers that Congress had in actual view. On April 23, only two weeks earlier, Madison wrote to Jefferson : "The government of the settlements on the Illinois and Wabash is a subject very perplexing in itself, and ren-
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dered more so by our ignorance of many circumstances on which a right judgment depends. The inhabitants at those places claim protection against the savages, and some provision for both criminal and civil justice. It also appears that land-jobbers are among them, who are likely to multiply litigations among individuals, and, by collusive purchases of spurious titles, to defraud the United States." 1 Now, it was not a matter of French settlements, with a gradual growth by immigration, but of the introduction of an organized community into the Western territory, a community which would want noth- ing but American institutions, a community which would form the nucleus for a state, a community to which the French settlements would in a very short time become subordinate. To provide for this would require some time; Congress was desirous of adjourning, but could not agree on a place for reconvening ; members began leaving. On May 12 no quorum remained, and none could be obtained until July 4.
General Parsons returned to his home, and the actual negotiation was turned over to luis co-director, Dr. Ma- nasseh Cutler. He was a graduate of Yale, had taken degrees in the three learned professions, and had served as chaplain in the army. He was a man of literary and scientific attainments, of pleasing presence, and of great business capacity. He left his home at Hamilton, Mas- sachusetts, in June ; arrived at Cambridge on the 23d ; received introductory letters from President Willard, of Harvard; and went over to Boston in company with Dr. Williams. At Boston he received letters from Governor Bowdoin, Mr. Winthrop, General Putnam, and others, and agreed with Putnam on the details of the purchase. .
1 Madison Papers, vol. ii. p. 640.
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From here he proceeded to Middletown, Connecticut, where he had a long conference with General Parsons, and on July 2 " settled all matters with respect to his business with Congress."1 On July 5 he arrived in New York. The following day Congress had a quorum, - the first for six weeks, except on July 4, -and Cut- ler presented his numerous letters of introduction and made his proposals for purchase, which went to the old committee on Parsons's memorial the same day. On the 9th the report on the Ordinance was referred to a new committee, composed of Carrington and Richard Henry Lee of Virginia, Dane, Smith of New York, and Kean of South Carolina.
On the tenth the committee on Parsons's memorial reported in favor of a grant on the terms proposed by the Ohio Company, but meanwhile Congress had deter- mined to finish the Ordinance before taking up the sale. Cutler entered in his journal : "July 10. As Congress was now engaged in settling the form of government for the Federal Territory, for which a bill has been pre- pared, and a copy sent to me, with leave to make re- marks and propose amendments, which I had taken the liberty to remark upon and propose several amendments, I thought this the most favorable time to go on to Phi- ladelphia." He went that evening and remained until the 17th. On the 11th the committee on the Ordinance reported. The report was made a special order of busi- ness, and read and amended on the day following. On the 13th it came to the third reading and passed, receiv-
1 Cutler's Journal, extracts from which were published in N. Am. Rev., vol. liii. p. 520; Annals of the West, p. 308, etc. Since the above was written a life of Dr. Cutler, containing very full extracts from the journal, has been published.
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ing the unanimous vote of the delegates, excepting Abra- ham Yates, Jr., of New York, who called for the yeas and nays, and put himself on record against it.
The Ordinance as adopted was an entirely different instrument from any that had before been considered by Congress, and yet it included the greater part of the preceding propositions. The identity of phraseology shows that whoever drafted it had the older reports be- fore him at the time. The first paragraph provides that the region northwest of the Ohio, for the time, should be one district for governmental purposes. The second regulates the descent and conveyance of property, and was new. Following it comes the Ordinance as it stood on May 10, almost in entirety. Following this comes Jefferson's ordinance of 1784, modified to harmonize with the other parts, into which are injected additional magna charta principles, as "articles of compact " and the " basis of all laws, constitutions, and governments, which forever hereafter shall be formed in the said terri- tory." Of these, the first three articles are new. The fourth includes Mr. Jefferson's articles. The fifth in- cludes the resolution of Congress on Monroe's motion for the division of the territory into not less than three nor more than five states. The sixth is the slave clause, as reported by the committee on Mr. King's motion, except that the extension to 1800 is removed ; and this clause alone, as a whole, did not appear in the Ordinance as reported and printed. It was introduced on July 12, and appeared on the printed bill, as an amendment, in the handwriting of Mr. Dane.1 The two features of the Ordinance which caused its harmonious and speedy pas-
1 Dane's Abridgment, vol. vii. pp. 339, 390; Dane to J. H. Farnham, Secy. Ind. Hist. Soc., in N. Y. Tribune, June 18, 1875.
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sage were withdrawals by the Northern States from the stand they had formerly maintained. The first was the restriction of the Ordinance to the region north of the Ohio, i. e. the lands already ceded, as in Jefferson's first report. The second was the admission of new states when they should have a population of sixty thousand free inhabitants ; which quieted all fears, such as Mr. Monroe had expressed, that the North was trying to keep the new states out of the Union. Mr. Jefferson's provision was that the applicant state should have a population equal to the least of the original states at the time of application. Monroe's plan, as reported from the committee, stipulated a population equal to one thir- teenth of the original states, " to be computed from the last enumeration." Either of these would have long de- layed the admission of most of the Western States, but the second would have been much worse than the first. Rhode Island had only 69,000 inhabitants in 1790, and had not increased in 1800. One thirteenth of the popu- lation of the original states in 1790 was over 200,000.
As to authorship there are two declarations, contem- poraneous with the passage of the Ordinance, that are of peculiar importance. On July 16, 1787, Nathan Dane wrote to Rufus King : " We have been much engaged in business for ten or twelve days past, for a part of which we have had eight states. There appears to be a dis- position 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 country- men. We have been employed about several objects - the principal of which have been the Government in- closed [the Ordinance] and the Ohio purchase ; the
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former, you will see, is completed, and the latter will probably be completed to-morrow. We tried one day to patch up M-s system of W. government - started new ideas and committed the whole to Carrington, Dane, R. H. Lee, Smith and Kean. We met several times, and at last agreed on some principles - at least Lee, Smith and myself. We found ourselves rather pressed. The Ohio company appeared to purchase a large tract of federal lands - about six or seven millions of acres - and we wanted to abolish the old system and get a better one for the government of the country, and we finally found it necessary to adopt the best system we could get. All agreed finally to the enclosed plan, except A. Yates. He appeared in this case, as in most others, not to under- stand the subject at all. ... When I drew the ordi- nance (which passed, a few words excepted, as I origi- nally formed it) I had no idea the States would agree to the sixth article, prohibiting slavery, as only Massachu- setts, 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." 1
Three days later Cutler entered in his journal : "July 19. Called on members of Congress very early this morning ; was furnished with the ordinance establishing a government in the Western Federal Territory. It is in a degree new modelled. The amendments I proposed have all been made, except one, and that is better quali- fied. It was, that we should not be subject to continen- tal taxation, unless we were entitled to a full representa- tion in Congress. This could not be fully obtained ; for 1 N. Y. Tribune, February 28, 1855.
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it was considered in Congress as offering a premium to emigrants." The reference here is, presumably, to the territory being allowed a delegate with the right of de- bate but not of voting, as had been provided in Jeffer- son's ordinance, and as has since been continued in ter- ritorial governments.
With these facts before us, there can be little room for question as to who framed the Ordinance, or what was the source of most of its provisions. It is universally conceded that Nathan Dane was the " scribe," but to one familiar with legislative work this means more than merely writing at the dictation of others. It means that after discussing the previous propositions, after agreeing in committee with Smith and Lee on desirable changes, after receiving the suggestions of Dr. Cutler, Nathan Dane put the Ordinance together in a shape that was acceptable to all with very slight alteration, and the greatest alteration proposed by himself. He did not claim much originality. In his letter to Mr. Webster, of March 26, 1830, he says : " I have never claimed originality, except in regard to the clause against im- pairing contracts, and perhaps the Indian article, part of the third article, including, also, religion, morality, knowledge, schools, etc."1 The ideas of the Ordinance, as we have seen, came from many sources. The great mass of it was the result of months of consideration and compromise by Congress. Of the new parts, Mr. Dane
1 Proceedings Mass. Hist. Soc. 1867-1869, p. 479. The last twelve words are merely explanatory, showing the location of the Indian article, but not claiming authorship of the remainder of the third article. They furnish a striking example of Mr. Dane's involved style. Shosuke Sato, in his interesting and valuable study of this subject, is misled by this obscurity. Johns Hopkins Univ. Studies, Fourth Series, p. 364.
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expressly claims that " his invention furnished the pro- vision respecting impairing contracts and the Indian security and some other smaller matters,"1 and there is no reason for disputing it.
To Dr. Cutler may safely be assigned the origination of all of the third article of compact except what refers to the Indians. Provisions for a university and the sup- port of religion were his hobbies, and he stood out for them to the extent of refusing to purchase at all unless they were conceded, as will appear hereafter. His ear- marks are plain on the clause as it was originally re- ported, in these words : "Institutions for the promotion of religion and morality, schools and the means of edu- cation, shall forever be encouraged, and all persons while young shall be taught some useful occupation." When the bill was before Congress this was amended to read : "Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged." The original looked too much like favoring a religious establishment to be acceptable to Congress. It is pos- sible that Cutler may also have suggested providing tem- porarily for the descent and conveyance of land, as it was of immediate importance to his company. Possibly, too, he may have suggested the first and the greater part of the second articles of compact, but these might with more plausibility be ascribed to Richard Henry Lee. The first secures freedom of conscience, and the sec- ond personal and property rights. Both were favorite dogmas with Virginians of Lee's school. According to Dane's letter to King, above, Lee took an active interest in the Ordinance, and according to his own statement 1 Abridgment, vol. vii. pp. 389, 390.
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his thought was turned in this direction. He wrote to Washington on July 15, 1787 : "I have the honor to inclose to you an ordinance, that we have just passed in Congress, for establishing a temporary Government be- yond the Ohio, as a measure preparatory to the sale of lands. It seemed necessary, for the security of property among uninformed, and, perhaps, licentious people, as the greater part of those who go there are, that a strong- toned Government should exist, and the rights of prop- erty be clearly defined." 1 With such ideas prominent, his chief interest would naturally be in the articles of compact, and, indeed, it is within the range of reasonable conjecture that Jefferson's ordinance may have been in- cluded at his suggestion. There certainly must have been very material changes in the draft, after Cutler saw it on July 10, to cause him to speak of it as "in a degree remodelled " on July 19. Grayson, Carrington, and St. Clair appear to have cordially supported the Ordinance, but there is nothing to show that they had any connec- tion with its authorship, and much to show that they had none.
On the whole we conclude, that, so far as any one man can be called the author of the Ordinance of 1787, Na- than Dane was its author. He drafted it, superintended its passage, introduced the slavery amendment, and manifested his interest by writing at once a long account of it to his friend Rufus King. In after-life it was his chief pride. He is the only man who claimed author- ship over his signature, and he repeatedly made the claim, from three days after its passage to the time of his death. It has been urged against his claim that he did not realize that he was framing a great charter of
1 Sparks's Correspondence of the Revolution, vol. iv. p. 174.
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rights. Very probably he did not ; but neither did any one else at the time. It has been urged that he ap- peared to consider the Ordinance a patchwork. Very true, he did; and it is a patchwork. Its joints are so plainly visible that it was considered advisable to insert in them the words, " Be it ordained by the authority aforesaid," by way of introduction, to make smooth the abrupt breaks which otherwise would have appeared. They occur in three places, introducing the three chief component parts above pointed out, and again in the clause repealing the resolution of 1784. It has been urged that Dane's style was obscure and devoid of ele- gance. No one who has attempted to read and under- stand his writings will be apt to deny this, but the Ordi- nance is not a model of clearness or precision, outside of its parts that were adopted bodily from other sources. For example, the provision as to laws impairing con- tracts reads that such laws " ought " not to be passed ; and as to slavery, the provisions are so enigmatical that no man, to this day, can say with assurance what is pro- vided on that subject. It has been urged that Daniel Webster became satisfied that others had suggested some of the provisions of the Ordinance. Very proba- bly he did ; but on May 15, 1850, twenty years after the controversy began, he wrote to the citizens of Newbury- port that the Ordinance "was drawn up by that great man of your own county, and a contemporary of your father's, Nathan Dane." 1
The most interesting question in connection with the Ordinance is, what were the motives that caused the unanimous consent of Southern members to the apparent exclusion of slavery, and the consent of Northern mem-
1 Webster's Works, vol. vi. p. 552.
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bers to the division of the western territory ceded from that unceded, and the reduction of the amount of popu- lation necessary for admission of a state. That the proposal of the Ohio Company induced immediate action is evident, but there is nothing to indicate that the com- pany or Dr. Cutler undertook to dictate as to govern- mental features. If Cutler had made the slavery clause a sine qua non of his purchase, as has been argued,1 it would have been presented in the printed report, and Cutler would more probably have remained in New York to urge its adoption, than have gone to Philadelphia on a pleasure trip, as he did. The singular unanimity witlı which the Ordinance passed shows that every one was satisfied ; but why ? A statement of Colonel Grayson gives a key to one side. Personally, Grayson had no objection to the clause, for he was the most pronounced anti-slavery Southern man in Congress. He had favored King's resolution when it applied to the entire western country, and on May 1, 1785, wrote to Madison con- cerning it : " I expect seven states may be found liberal enough to adopt it." He was an active advocate of the Ordinance. He wrote to Monroe on August 8, 1787, urging him to use his influence to have it ratified by Virginia. Nothing was done at that session of the Vir- ginia legislature, and at the next Grayson stood for membership, was elected, and was a member of the committee which reported the bill confirming the Ordi-
1 W. F. Poole in N. Am. Rev., vol. cxxii. p. 229. This is by far the most valuable study of the Ordinance yet published, with possibly the exception of Mr. Force's publication in the National Intelligencer of August 6, 1847, which is republished in Western Law Journal, September, 1848, and St. Clair Papers, vol. ii. p. 603.
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nance. Apparently, then, he was in a situation to know why members voted as they did, and he said, in his letter to Monroe of August 8 : "The clause respecting slavery was agreed to by the Southern members for the purpose of preventing tobacco and indigo from being made on the northwest side of the Ohio, as well as for several other political reasons." These other reasons, so far as. he reveals them, he gives by setting forth the project of the Ohio Company, concluding thus : "From the great number of inhabitants in the Eastern States, and in the Jerseys, I should not be surprised to see them in a very few years extend themselves by additional pur- chases quite to the Mississippi, and thereby form a com- plete barrier for our state, at the same time greatly validating the lands on the Virginia side of the Ohio." 1
That the culture of indigo and tobacco should have had anything to do with the Ordinance of 1787 may strike the reader as verging on absurdity, but the con- nection is close and logical, and it is a political reason, as Grayson said. Indigo had been cultivated north of the Ohio since the middle of the eighteenth century, and profitably, too, though it produced only two cuttings a year.2 The tobacco of the French settlements was con- sidered, as we have seen, equal to the best product of Virginia. These crops, like all others whose preparation for market requires attention during the entire year, gave the most profitable employment to slave labor, and it was supposed that free labor could not compete with slave labor in their production. In addition to this, the un- healthfulness of indigo culture and preparation was con- sidered sufficient to prevent free labor from engaging in
1 Bancroft's Hist. Const., vol. ii. p. 437.
2 Hutchins's Top. Desc., p. 43.
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it at all. The Southern members reasoned that they were gaining three advantages : 1. The monopoly of the most profitable branches of agriculture for their western territory, which was still unceded ; 2. Protection of their western territory from the Indians subject to British in- fluence, by the settlement of the country north of them ; 3. The speedy settlement of their western territory by people of political sentiments similar to their own. This last is a corollary of the other two. If their side of the Ohio were best protected from Indians, it would be most desirable to settlers. If slavery were excluded north of the Ohio, all who desired to hold slaves must settle south of it. If the most profitable branches of agriculture could be followed only by slave labor, all shrewd agricul- turists would desire to hold slaves. The northern terri- tory, by express limitation, could not be made into more than five states, and might be limited to three. The southern territory had already two strong slave-holding colonies in their northernmost part, which would have been most subject to Northern influence, and the territory below would make enough more to balance the Northern element above the river.
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