USA > Indiana > Indiana, a redemption from slavery > Part 16
Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).
Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22 | Part 23 | Part 24 | Part 25 | Part 26 | Part 27 | Part 28 | Part 29 | Part 30 | Part 31 | Part 32 | Part 33
Dane did not grasp their theory. He had no idea, as he says, that the Southern States would consent to the slavery clause, and must have been astonished when they did so unanimously. He proceeded on the supposition that he was gaining a political advantage to New Eng- land by the same measure, and that the concessions by the North were such in form only. In his letter of July 16th to King he said : " I think the number of free inhabitants - 60,000 - which are requisite for the ad- mission of a new state into the confederacy is too small ; but, having divided the whole territory into three states,
214
INDIANA.
this number appears to me to be less important. Each state, in the common course of things, must become im- portant soon after it shall have that number of inhabitants. The eastern state of the three 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 an equal chance of its adopting eastern politics." From his stand, he was naturally surprised at the South- erners accepting the slavery clause. Both sides thought they had the advantage. In the slight discussion of the measure, each kept its actuating motives secret ; and each had arrived at much the same conclusion as was reached, after open controversy, in the Missouri Compromise. The Southern States said : "Take the territory north of the Ohio and make free states of it ; but you must not make more than five states ; you must leave us untrammelled south of the Ohio ; you must give up our slaves when they escape to you." From that time for half a century the distinction of North and South on the question of slavery in new territories was maintained. Two years later North Carolina ceded her western lands, providing always, " That no regulations made or to be made by Congress shall tend to emancipate slaves." Congress accepted the cession, and in May, 1790, gave the terri- tory south of the Ohio the same government as that north except as to slavery.1 In 1798 Congress refused a petition for the suspension of the slavery clause in the Northwest Territory; but in the same year a proposi- tion to exclude slavery from Mississippi Territory was rejected by a vote of 58 to 12 in the House of Rep- resentatives, the debate having turned on the diverse
1 Poore's Charters and Constitutions, pp. 1666, 1667.
215
THE ORDINANCE OF 1787.
nature and conditions of the country north and south of the Ohio.1
In the Congress of 1787, of eighteen men, represent- ing three Northern States and five Southern States, only one man, Abraham Yates, Jr., of New York, voted against the Ordinance, and he has commonly received only scorn and ridicule for his record. Dane, as has been mentioned, attributed his opposition to lack of sense ; but Dane had evidently but a glimmering idea of what the effects of the Ordinance would be. He was not a broad man. Monroe counted him among the most " illiberal " men he had ever seen from Massachusetts.2 The truth is that no one knows why Yates opposed the . Ordinance, farther than that Nathan Dane afterwards said that it was not on account of objection to the slave clause.8 He may have objected to the distinction be- tween lands north and south of the Ohio; he may have objected to the property qualifications of electors and officers ; he may have objected to limiting the future states of this section to five. Possibly it was narrowness and stupidity ; possibly it was breadth and foresight ; possibly some personal interest was interfered witlı.4
1 Benton's Abridgment, vol. ii. pp. 221-224.
2 Monroe to Jefferson, July 16, 1786. Dane's name has been confounded with Francis Dana's in some prints of this letter. Dana was not in Congress at the time. Journals of Am. Cong., vol. iv. p. 606.
3 Dane's Abridgment, vol. vii. p. 446. This does not appear to have been noticed by Governor Coles, who conjectured that Yates objected to the provision for fugitive slaves. Hist. of Ord. of 1787, p. 28.
4 There was probably some bad blood in regard to Yates. He had been expelled from the office of Commissioner of the Conti- nental Loan Office of New York, on May 1, 1786, for refusing to take the oath prescribed by Congress. On October 9, 1787, a
216
INDIANA.
As to this last, it cannot be questioned that local and even individual interests affected legislation then as they have always done. Cutler found this to be true as he went on with his purchase. He found much difficulty in getting the terms he desired, which were, in chief, three shillings sixpence Continental money, or one twelfth of a dollar coin, per acre, for the tract, with sections 8, 11, and 26 of each township to be reserved by Congress for future sale, section 16 to be donated for school land, sec- tion 29 to be donated for religious purposes, and two entire townships to be donated for a university.1 The proposal was vigorously opposed, and it is not clear that it should not have been, for the price was certainly very low. On July 19, Congress reached a conclusion as to what it was willing to do, but no allowance was made for a university or for religious purposes, and the price was fixed at a dollar an acre for the land, in specie, or Continental money on a specie basis, allowing, however, a discount of not over one third of a dollar for bad lands, expenses, etc. On the 20th Cutler refused absolutely to accept the terms, and said he was about to leave, as he could contract with some of the states on much better terms. Later in the day Colonel Duer came to him with a cool proposal " from a number of the principal characters in the city," that he should take in another company and buy lands as its agent, though apparently for his own company, all of which was to " be kept a profound secret." Having considered the " generous
motion to commit a report on his accounts, which his friends con- sidered favorable, was defeated by the Virginia delegation and Arthur St. Clair, though a large majority of the house favored committing. Journals Am. Cong., vol. iv. pp. 633, 792.
1 Bancroft, Hist. Const., vol. ii. p. 433.
217
THE ORDINANCE OF 1787.
conditions " offered him for his services, and being urged by Colonel Duer and Winthrop Sargent, Cutler con- sented, and thenceforward Duer and Sargent took an active interest, and the negotiation proceeded more rapidly. On the 23d a new impetus was added. Cutler had desired that General Parsons should be governor of the new territory, but had come to the conclusion that Arthur St. Clair, then President of Congress, desired this position, as there was a strong interest in his behalf, especially among Southern members. On the evening of the 23d, Cutler announced to a company of his Southern friends that he would be satisfied if Parsons were made first judge and Sargent secretary of the ter- ritory ; that he heartily wished St. Clair to be governor, and would work for him with the Eastern members.
Whether or not this had any effect on St. Clair,1 it is certain that Cutler and others thought it did. On the 26th Cutler recorded : "General St. Clair assured me he would make every possible exertion to prevail with Congress to accept the terms contained in our letter. He appeared much interested and very friendly, but said we must expect opposition. I am fully convinced that it was good policy to give up Parsons and openly appear solicitous that St. Clair should be appointed gov- ernor. Several gentlemen have told me that our mat- ters went on much better since St. Clair and his friends had been informed that we had given up Parsons, and that I had solicited the Eastern members in favor of his appointment." The negotiation was now pushed by every agency that could be commanded. Cutler pre-
1 It has been broadly asserted that it did (N. Am. Rev., vol. cxxii. p. 229), and acrimoniously denied (Mag. of West. Hist., vol. i. p. 49).
218
INDIANA.
tended that he was about to leave in disgust and aban- don the purchase ; his friends in Congress worked actively ; the Board of Treasury supported the measure ; the "principal characters of the city " did their part ; St. Clair and his friends did theirs. On the evening of the 26th only two members held out against the sale on Cutler's terms, which he had amended as to price. These were Mr. Few of Georgia, and Mr. Kearny of Delaware, but these two were enough to defeat the mea- . sure, for there were only eight states present and only two members from each of these states. On the 27th the bill passed, making the reservations for university and religious purposes for which Cutler had stipulated. That night he entered in his journal : " By this ordi- nance we obtained the grant of near five million of acres of land, amounting to three million and a half of dollars ; one million and a half of acres for the Ohio Company, and the remainder for a private speculation, in which many of the principal characters of America are con- cerned. Without connecting this speculation, similar terms and advantages could not have been obtained for the Ohio Company." This seems to be an apology to conscience for his own part in the affair, but what a com- mentary on all concerned ! To a prominent politician of the present day is ascribed the maxim : " It is safer to go a hundred miles to see a man than it is to write to him." This is indeed a dictation of wisdom; but even after taking that precaution, it were well to remember that your friend may keep a diary.
CHAPTER VI.
THE SLAVERY PROVISO.
WHILE historians have devoted much attention to the authorship of the Ordinance of 1787, and particularly of the slavery clause, they have neglected to consider a question of much more importance : What did the Or- dinance provide in regard to slavery ? At first blush this question seems uncalled for. The sixth article of compact provides plainly : "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 labour or service is lawfully claimed in any one of the original states, such fugitive may be lawfully reclaimed, and con- veyed to the person claiming his or her labour or service as aforesaid." On this clause alone is founded the com- mon understanding that slavery was absolutely prohib- ited in the Territory Northwest of the Ohio; but unfor- tunately for the peace of mind of those who had the duty of construing the Ordinance, there were other provisions inconsistent with the apparent import of this clause. Suffrage was restricted to "free male inhabitants ; " population was to be estimated of tlie "free inhab- itants ;" and, in the provisions for conveyance of prop- erty, there was saved "to the French and Canadian inhabitants, and other settlers of the Kaskaskies, St.
220
INDIANA.
Vincents, and the neighbouring villages, who have here- tofore professed themselves citizens of Virginia, their laws and customs now in force among them, relative to the descent and conveyance of property." Then there were other documents that affected the rights of the people who came under the Ordinance. The deed of cession by Virginia provided, "That the French and Canadian inhabitants, and other settlers of the Kaskas- kies, St. Vincents, and the neighboring villages, who have professed themselves citizens of Virginia, shall have their possessions and titles confirmed to them, and be pro- tected in the enjoyment of their rights and liberties." There had been no similar provision for these ancient inhabitants in the old French-English treaty; but there was one made in Jay's treaty of 1794, under which the British forces finally evacuated the West, which pro- tected the rights of all those of the ancient inhabitants who had not claimed citizenship of Virginia.
In order to arrive at a proper understanding of the actions of the early settlers, it will be necessary to in- quire what construction was given to these various pro- visions by those in authority. As we shall find these in conflict, we may well afford to keep in mind the great difficulty of stating a principle in language so that it will be explicit beyond question, and also the fact that those expressions which are ordinarily considered commend- able for their conciseness and simplicity are not infre- quently subject to the most variant interpretations. Of this the most common instances are seen in the laws of all communities, even those which are drawn with the utmost care; for no one can say certainly what they mean until the highest tribunal of the jurisdiction has announced the construction it will put upon them, and
221
THE SLAVERY PROVISO.
sometimes not then. Aside from any spirit of factious or interested controversy, there frequently occur expres- sions about whose meaning equally conscientious men differ, and each may have so much in his favor that, in the light of different surroundings, the same language may properly be given a meaning at one place totally distinct from what it properly bears at another place. One of the most remarkable instances of this occurs in the common American declaration of natural rights. In Massachusetts the declaration of rights in the Constitu- tion of 1780 opens with the article : " All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties ; that of acquiring, possessing, and protecting property ; in fine, that of seeking and obtaining their safety and happiness."1 It cannot be said with absolute accuracy that slavery was abolished previous to this in Massachu- setts, for at one time it certainly existed, and no law had as yet prohibited it ; still from 1770 juries had in- variably given judgment to slaves who sued their mas- ters for wages, finding each time that the plaintiff was not a slave.2 In 1836 the Supreme Court of Massachu- setts held that, if slavery existed in Massachusetts in 1780, it was abolished by this clause of the declaration, for "it would be difficult to select words more precisely adapted to the abolition of slavery." 8 The same con- clusion had been reached by the court in the first case that came before it involving the question, after the
1 Poore's Charters and Constitutions, p. 957.
2 Walsh's Appeal from the Judgments of Great Britain, etc. pt. i. p. 313.
8 Commonwealth v. Aves, 18 Pickering, 193, at pp. 209, 210.
222
INDIANA.
adoption of the Constitution, and again in 1796, and again in 1808, even as to slaves born before the decla- ration of rights was made.1 In other words, this was construed to be a declaration of emancipation to all per- sons held in slavery in Massachusetts.
The New Hampshire Constitution of 1784 opened with the clauses : " All men are born equally free and independent ;" " All men have certain natural, essential, and inherent rights, among which are the enjoying and defending of life and liberty ;" "Among the natural rights, some are in their very nature unalienable, because no equivalent can be given or received for them." 2 The Supreme Court of that state held this to mean that all persons born in New Hampshire after that date were born free, while those held in slavery at that date still remained slaves.& The Virginia Bill of Rights of 1776, which was reaffirmed in their Constitution of 1830, opened with this article : "That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity ; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety." 4 This provision is as capable of sustaining a construction of emancipation as either of the others, but it was never construed to affect slavery at all. Under it, the posterity
1 Inhabitants of Winchenden v. Inhabitants of Hatfield, 4 Mass. p. 123, at pp. 128, 129 and note.
2 Poore's Charters and Constitutions, p. 1280.
3 Poole's Anti-Slavery Opinions, p. 58. The case is unreported, the New Hampshire reports extending back only to 1816.
4 Poore's Charters and Constitutions, pp. 1908, 1913.
223
THE SLAVERY PROVISO.
of many men were held to be deprived and divested of their natural rights by action that occurred prior to their birth, and no distinction was made between cases where the slavery resulted from compact and those that arose from force and violence. Indeed, it was notorious that freemen sold their own mulatto children born in Vir- ginia. The construction was simply that this article had no reference to, and no effect upon, slaves. The pro- vision in the national Declaration of Independence, to the same effect, was of course only an abstract state- ment of natural right, as the representatives had no power to interfere with slavery in any of the territory they represented, though it was often contended after- wards that slavery was inconsistent with the provision of the Declaration.
So far as is known, the question of the meaning of the Ordinance in regard to slavery was raised in the courts of Northwest Territory but once, and then no decision was reached ; and the circumstances were such that a decision would have been of little weight, had it been made. In the summer of 1794, Judge Turner, who had gone to Vincennes to hold court, became in- volved in an extensive quarrel with Henry Vanderburgh, who was then probate judge and justice of the peace for Knox County, and Captain Abner Prior, of the United States Army, who was supervising Indian affairs on the Wabash. Several matters were in controversy, and bit- ter feeling was produced. In the midst of this, a negro and his wife, held as slaves by Vanderburgh, applied to Turner's court for emancipation by writ of habeas cor- pus, instigated possibly by Turner. That Turner would have held that the Ordinance freed them is beyond ques- tion, for he expressly declared that they were "free by
224
INDIANA.
the Constitution of the Territory," but before the cause came on for trial the negroes were seized and carried away by a party of men who, as Turner alleged, were employed by Vanderburgh. Turner then had the kid- napers arrested, though some of them resisted and one threatened the sheriff with a knife.1 Complaints from all parties were made to St. Clair, who, though declining to adjust the difficulty, took sides against Turner, and proceeded to give him some information as to the mean- ing of the Ordinance, which will be noticed later. The French settlers were greatly excited over this attempt to release their slaves. The grand jury of the county found a presentment against Turner,2 and later on the citizens preferred charges against him which were sub- mitted to Congress as grounds for impeachment, but, on the suggestion of the Attorney-General, the House of Representatives recommended a trial in the courts as preferable.8
The earliest known decisions of this question in any of the country originally covered by the Ordinance were in some habeas corpus cases that arose in Michigan Ter- ritory, about two years after its separation from Indiana. The court there arrived at the conclusion that slavery still existed, but that it existed only as preserved by Jay's treaty with Great Britain to British subjects re- siding in Michigan in 1796, the year of final evacuation by the British forces. It was held that the Ordinance did not go into effect there until that year, and that it left in slavery all who were then slaves, but it prevented any importation of slaves thereafter. The Chief Justice
1 St. Clair Papers, vol. ii. pp. 325, 326.
2 Ibid., vol. ii. p. 342.
3 Am. State Papers : Misc., vol. i. pp. 151, 157.
225
THE SLAVERY PROVISO.
summed up the decision of the court in these words: "I am, therefore, bound to say and do say, that a right of property in the human species cannot exist in this terri- tory except as to persons in the actual possession of British settlers in this territory on 16th June, 1796, and that every other man coming into this territory is by the law of the land a freeman, unless he be a fugitive from lawful labor and service in some other American state or territory, and then he must be restored." 1 It will be observed that this decision had no effect on " the French and Canadian inhabitants, and other settlers of the Kaskaskies, St. Vincents, and the neighboring vil- lages, who have heretofore professed themselves citizens of Virginia ; " but it did preserve the slaves of all the similar class of ancient inhabitants who were outside the limits of the Virginia conquest, and within the United States, and also of those who had settled in the parts held by the British between July 13, 1787, and June 16, 1796.
The same conclusion as to the rights of slaveholders under the British treaty was reached by the Supreme Court of Missouri in 1845, in a suit for freedom brought by Pierre, a negro, against Gabriel S. Chouteau, his master. The plaintiff showed that his mother, Rose, a negress, was born in Montreal about the year 1768 ; that about the year 1791 she was taken by John Stark to Michilimackinac, and afterwards to Prairie du Chien ; and that she remained at these places some four years as a servant or slave in his family. About 1795 Rose was taken to St. Louis by Andrew Todd, and sold to Didier, a priest, who in August, 1798, sold her to Au-
1 MS. belonging to Mich. Hist. Soc. See Cooley's Michigan, pp. 136, 137.
226
INDIANA.
guste Chouteau, from whom she came to the defendant. The plaintiff, who was born while his mother was in the possession of Auguste Chouteau, claimed that his mother was a free woman because she was born in the British province of Canada ; and that, even if a slave there, she became free by her residence at Prairie du Chien, which was in the territory covered by the Ordinance of 1787. On the questions of fact the presumptions were all thrown against the negro. It was held that the burden of proof was on him to show that Canada was a free province, and that he had failed to do so. It was assumed that during his mother's stay at Prairie du Chien the place was under British control, being one of the posts outside the limits of the Virginia conquest. On this assumption the court held that " the possession of these posts by British subjects, at the time of her detention at them, prevented the operation of the Ordinance within their limits." It held that, under the Jay treaty, all the settlers and traders in the parts held by the British were left in full possession of their property of all descrip- tions, with a period of one year to make election whether they would become citizens of the United States, leave the territory, or remain there, without becoming citizens or taking any oath of allegiance, in possession of their property as before. Besides this, it held that as Rose had been removed to St. Louis prior to the British evacuation, she " never could have acquired any rights under the Ordinance of 1787." Of course Pierre re- mained a slave.1 As to this class of slaves - those held under Jay's treaty - there appears to have been no con- flict of opinion in the courts, and therefore slavery to that extent must be admitted to have existed lawfully under the Ordinance.
1 G. S. Chouteau v. Pierre (of color), 9 Mo. p. 3.
227
THE SLAVERY PROVISO.
That a similar conclusion of law would have been reached by the Missouri court at an earlier date, if the question had been presented, is very probable, but this particular case would have almost certainly been de- cided otherwise on the questions of fact, for in the years prior to 1830 all doubts were resolved in favor of free- dom. Several of these earlier cases involved the rights of other classes of slaves held in the territories above the Ohio. The earliest reported one, which was begun in 1822 and reached the Supreme Court in 1824, pre- sented the question of the status of a negress who had been taken to the Illinois country from Carolina, about the year 1797, and there held in slavery for three or four years, after which she was removed to Missouri. The words of Justice Tompkins, in giving the decision of the court as to the effect of the Ordinance, are worthy of preservation as an expression of public sentiment in Missouri at that day. He said : " It was urged, thirdly, that the slaves of persons settling in that country do not thereby become free. The words of the Ordinance are, ' That there shall be neither slavery nor involuntary ser- vitude in the said territory.' We did not suppose that any person could mistake the policy of Congress in mak- ing this provision. When the states assumed the right of self-government, they found their citizens claiming a right of property in a miserable portion of the human race. Sound national policy required that the evil should be restricted as much as possible. What they could, they did. They said, by their representatives, it shall not vest within these limits, and by their acts for nearly half a century they have approved and sanctioned this decla- ration. What, then, shall be the consequence ? The common - law judges of England, without any positive
Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.