Slavery and four years of war

by Joseph Warren Keifer

V ORDINANCE OF 1787

The memorable Congress of 1776 was willing to do much to the end that slavery might be restricted, hence, as we have seen, it resolved "that no slaves be imported into any of the thirteen United Colonies."

Had it been possible thus early to stop effectually the slave trade, and to prevent the extension of slavery to new territory, slavery would have died out. Jefferson sought, shortly after the treaty of peace, to prohibit slavery extension, and to this end he prepared and reported an Ordinance (1784) prohibiting slavery after the year 1800 in all the territory then belonging to the United States above the parallel of 31° North latitude, which included what became the principal parts of the slave States of Alabama and Mississippi, all of Tennessee and Kentucky, as well as the whole Northwest Territory. In 1784 the United States owned no territory south of 31° North latitude.

This Ordinance of freedom was lost by a single vote. Had that one vote been reversed, what a "hell of agony" would have been closed, and what a sea of blood would have been saved! Slavery would have died in the hands of its friends and the new Republic would have soon been free in fact as well as name.

Jefferson, though himself a slaveholder, was desperately in earnest in advocacy of this Ordinance, and, speaking of its prohibitory slave-clause two years later, he wrote:

"The voice of a single individual would have prevented that abominable crime. Heaven will not always be silent; the friends to the rights of human nature will in the end prevail."(14)

The most important victory for freedom in the civil history of the United States (until the Rebellion of 1861) was the Ordinance of 1787, reported by Nathan Dane,(15) of Massachusetts, as a substitute for the defeated one just referred to, but differing from it in two important respects:

(1) It applied only to the territory northwest of the River Ohio recently (March 1, 1784) ceded to the United States by Virginia;

(2) It prohibited slavery at once and forever therein. Its sixth section is in these words:

"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."

But it has been, with much force, claimed by those who denied the binding character of this Ordinance, that as it was an act of the old Congress under the Articles of Confederation, and established a territorial form of government, not in all respects in conformity with the Constitution, it was necessarily superseded by it.

This view was general on the meeting of the First Congress (1789) under the Constitution, but the Ordinance, so dear to the hearts of Jefferson and other lovers of liberty, was early attended to.

On August 7, 1789, the eighth act of the First Congress, embodying a long explanatory and declaratory preamble, was passed, and approved by President Washington. This act in effect re-enacted the Ordinance of 1787, adapting and applying it, however, to the Constitution by requiring the Governor of the Northwest Territory to report and become responsible to the President of the United States, instead of to Congress as originally provided.(16)

The territory which the ordinance governed was in area 260,000 square miles, and included what is now the great states of Ohio, Indiana, Illinois, Michigan, and Wisconsin, with, in 1890, 13,471,840 inhabitants.

The Ordinance is a model of perfection. It was the only great act of legislation under the Articles of Confederation. There is evidence that, as some members of the Congress that enacted the Ordinance were at the same time members of the Convention that framed the Constitution,(17) there was much intercommunication of views between the members of the two bodies, especially on the slavery clause of the Ordinance. It is probable that the clause of the Constitution respecting the rendition of slaves, as well as other provisions, was copied from the Ordinance.(18)

Upon the surpassing excellence of this Ordinance, no language of panegyric would be extravagant.

It is a matchless specimen of sagacious forecast. It provides for the descent of property, for the appointment of territorial officers, and for extending the fundamental principles of civil and religious liberty by securing religious freedom in the inhabitants. It prohibits legislative interference with private contracts, secures the benefit of the writ of habeas corpus, trial by jury, and of the common law in judicial proceedings: it forbids the infliction of cruel or unusual punishments, and enjoins the encouragement of schools and the means of education.

The Ordinance has not only stood, unaltered, as the charter of government for the Northwest Territory, but its clause respecting slavery was incorporated into most of the acts passed prior to the Rebellion providing for territorial governments.

Historically, it will stand as the great Magna Charta, which, by the prescient wisdom of our fathers, dedicated in advance of the coming civilization the fertile and beautiful Northwest, with all its possibilities, for all time, to freedom, education, and liberty of conscience.

Frequent efforts to rescind or suspend the clause restricting slavery were made, especially after Indiana Territory was formed in 1800.

At the adoption of the Ordinance some slaves were held in what is now Indiana and Illinois by immigrants from Southern States. Slavery also existed at the Vincennes, Kaskaskia, Cahokia, and other French settlements, where it had been planted under the authority of the King of France while the territory was a part of the French possessions. The Government of Great Britain authorized the continuance of slavery when the territory was under its jurisdiction. Indians as well as black men were held as slaves in the French settlements.(19)

Immigrants and old inhabitants favorable to slavery united in memorials to Congress asking a suspension of the article prohibiting slavery. The first of these was reported on adversely by a committee of Congress, May 12, 1796. Governor William Henry Harrison, December, 1802, presided, at Vincennes, over a meeting of citizens of the Indiana Territory, at which it was resolved to make an effort to secure a suspension of this article. A memorial was drawn up, which Governor Harrison, with a letter of his own favoring it, forwarded to Congress. They were referred to a special committee, of which John Randolph, of Virginia, was chairman.

He, March 2, 1803, reported:

"That it is inexpedient to suspend, even for a limited time, the operation of the sixth article of the compact between the original States and the people and States west of the river Ohio."

Adding, by way of reason, that:

"The rapid population of the State of Ohio sufficiently evinces, in the opinion of your committee, that the labor of slaves is not necessary to promote the growth and settlement of the colonies in that region."

This did not end the effort to secure slavery in the Indiana Territory. In March, 1804, a special committee of Congress reported in favor of the suspension of the inhibition for ten years; a similar report was made in 1806 by Mr. Garnett, of Virginia; and in 1807 Mr. Parker, delegate from Indiana, reported favorably on a memorial of Governor Harrison and the Territorial Legislature, praying for a suspension of that part of the Ordinance relating to slavery. These reports were not acted on in the House. Subsequently, Governor Harrison and his Legislature appealed to the Senate and a special committee to suspend the article, but when the committee reported adversely, all efforts to break down the legal barrier to slavery in the Northwest Territory ceased.(20)

But notwithstanding the mandatory terms of the Ordinance, and the repeated failures in Congress to suspend the provision relating to slavery, it existed in the Northwest throughout its territorial existence and in the State of Illinois until 1844.(21) The early slaveholding inhabitants well understood the Ordinance to mean the absolute emancipation of their slaves, and hence manumitted them or commenced to remove them to the Spanish territory beyond the Mississippi. Some few of the inhabitants complained to Governor St. Clair that the inhibition against slavery retarded the growth of the Territory. He volunteered the opinion that the Ordinance was not retroactive; that it did not apply to existing conditions; that it was "a declaration of a principle which was to govern the Legislature in all acts respecting that matter (slavery) and the courts of justice in their decisions in cases arising after the date of the Ordinance"; and that if Congress had intended the immediate emancipation of slaves, compensation would have been provided for to their owners. But he admitted Congress "had the right to determine that property of that kind afterwards acquired should not be protected in future, and that slaves imported into the Territory after that declaration might reclaim their freedom."(22) This unfortunate opinion operated to continue slavery in the Territory, and fostered the idea that the sixth article might be annulled and slavery be made perpetual in the Territory. Governor St. Clair was President of the Congress when the Ordinance was passed, and his opinion in relation to it was therefore given much weight.

By Act of Congress, passed May 7, 1800, what is now the State of Ohio became the Territory of Ohio, and that part of the Northwest Territory lying west and north of Ohio was erected into the Territory of Indiana; by like Acts, January 11, 1805, the Territory of Michigan was formed, and February 3, 1809, all that part lying west of Indiana and Lake Michigan became the Territory of Illinois. Prior, however, to the last Act, the Legislature of Indiana Territory (September 17, 1807) passed an act "to encourage emigration," making it lawful to bring negroes and mulattoes into the Territory, "owing service or labor as slaves."

The act provided that these people and their children should be held for a term of years, and if they refused to serve as slaves they might be removed, "within sixty days thereafter," to any place where they could be lawfully held. This statute was substantially re-enacted by the Legislature of the Territory of Illinois in 1812.

The first Constitution (1818) of Illinois did not prohibit slavery. The first section of Article VI, declared that: "Neither slavery nor involuntary servitude shall hereafter be introduced into this State, otherwise than for the punishment of crimes." Slavery existed in Illinois after it became a State. The French and Canadian inhabitants or their descendants continued to hold colored and Indian slaves, and others were held under the Territorial Acts of 1807 and 1812. The old slaves and their descendants, held at the time of the cession by Virginia to the United States, were sold from hand to hand in the State, and transported to and sold in other slave States.(23)

The Constitution of Indiana (1816) prohibited slavery, but slaves were held therein until its Supreme Court in 1820, in a habeas corpus case, held the Constitution freed all persons hitherto held in bondage, including the old French slaves, regardless of the Ordinance of 1787, of the deed of cession of Virginia, or of any treaty stipulations.(24)

After the separation (1805) of Michigan from Indiana, the former's Territorial Chief Justice held slavery existed in Michigan by virtue of the Jay treaty (1796) with Great Britain (not otherwise) notwithstanding the Ordinance of 1787,(25) but Michigan's Constitution (1837) put an end to slavery in the State, as did also the Constitution (1802) of Ohio, likewise the Constitution (1848) of Wisconsin. Slaves shown by census reports in Ohio, Indiana, Michigan, and Wisconsin after they became States, were there by tolerance, not by legal right.

Whatever contrariety of views obtained, and regardless of the conflicting opinions of the courts or judges as to the effect of the great Ordinance on the condition of the slaves in the Northwestern Territory, certain it is that the Ordinance operated to prevent, after its date, the legal importation of slaves into the Territory, and hence resulted in each of the States formed therefrom becoming free States. In the light of history it seems certain that at least Indiana and Illinois would have become slave States but for the Ordinance.(26)

This Ordinance contained a clause requiring the rendition of fugitives from "service or labor," and being applicable to only a part of the Territory of the United States, partook of the nature of a compromise on the slavery question,(27) and was the first of a series of compromises, some of which are found in the Federal Constitution, others in the Act of 1820 admitting Missouri as a State, and also the Compromise Measures of 1850, in which Clay, Webster, Calhoun, Seward, and others of the great statesmen of the Union participated, all of which were, however, ruthlessly overthrown by the Nebraska Act (1854), of which Douglas, of Illinois, was the author.

The slavery-restriction section of the Ordinance was copied into and became a part of the Act of 1848 organizing the Territory of Oregon, the champions of slavery, then in Congress, voting therefor; and three years after the enactment of the Compromise Measures of 1850, this provision of the Ordinance was again extended over the newly organized Territory of Washington by the concurrent votes of substantially the same persons who voted, a year later, that all such legislation was unconstitutional.

But neither origin, age, nor precedent then sanctified anything in the interest of freedom,—slavery only could appeal to such things for justification. The propagators of human slavery were on the track of this Ordinance; they overtook and overthrew it by Congressional legislation in 1854; then by the Dred Scott decision of 1857, as we shall soon see. But it reappeared in principle, in 1862, as we shall also see, and spread its wings of universal liberty (as was its great author's purpose in 1784) over all the territory belonging to the United States, to remain irrepealable through time, immortalized by the approval of President Lincoln, and endorsed by the just judgment of enlightened mankind.

Virginia, North Carolina, and Georgia each held territory not subject to the Ordinance of 1787.

North Carolina (December, 1789), in ceding her territory west of her present limits, provided that:

"No regulations made or to be made by Congress shall tend to emancipate slaves."

Thus Tennessee became a slave State.

A year later (1790) Virginia consented to relinquish her remaining territory; as Kentucky it was (June 1, 1792) admitted into the Union and became a slave State, without ever having a separate territorial organization.

Georgia, in 1802, ceded the territory on her west to the United States, and provided that the Ordinance of 1787 should extend to the ceded territory, "the article only excepted which forbids slavery." Thus, later, Alabama and Mississippi each became a slave State.(28)

(14) Jefferson's Works, vol. ix., 276.

(15) The authorship of the admirably-drawn Ordinance has been much in dispute. Thomas H. Benton, Gov. Edward Coles, and others attribute the authorship to Jefferson; Daniel Webster and others to Nathan Dane, while a son of Rufus King claimed him to be the author of the article prohibiting slavery. Wm. Frederick Poole, in a contribution to the North American Review, gives much of the credit of authorship to Mr. Dane, but the chief credit for the formation and the entire credit for the passage of the Ordinance to Dr. Manasseh Cutler, St. Clair Papers, vol. i, p. 122.

(16) On the continuing binding force of the Ordinance on States formed out of the Northwest Territory there has been some contrariety of opinion. In Ohio it was early held the Ordinance was more obligatory than the State Constitution, which might be amended by the people of the State, whereas the Ordinance could not. (5 Ohio, 410, 416.) But see: 10 Howard (U. S.), 82, and 3 Howard, 589.

(17) Madison of Virginia, Rufus King of New York, Johnson of Connecticut, Blount and Charles Pinckney of South Carolina, and Few of Georgia were members of both bodies.—Historical Ex., etc., Dred Scott Case (Benton), p. 37 n.

The Ordinance was adopted July 13, 1787; the Constitution was adopted by the Convention September 17, 1787.

(18) St. Clair Papers, vol. i, p. 134.

(19) Dunn's Indiana, p. 126.

(20) St. Clair Papers, vol. i, pp 120-1, note. Historical Ex., etc., Dred Scott Case, pp. 32-47, etc. Political Text Book, 1860 (McPherson), pp. 53-4.

(21) Not until 1844 did the highest court of Illinois decide (four to three) that a colored man, held as a slave by a descendant of an old French family, was free. Jarrot case (2 Gillman), 7 Ill., 1.

(22) St. Clair Papers, vol. i., pp. 120, 206, and vol. ii, pp. 117-119, 318, 331.

(23) Much valuable information in relation to the legal history of slavery in the Northwest has been obtained from the manuscript of "An Unwritten Chapter of Illinois," by ex-U. S. Judge Blodgett, of Chicago.

(24) State vs. Lasselle, 1 Blatchford, 60.

(25) Cooley's Michigan, pp. 136-7.

(26) For an exhaustive legal history of the slavery restriction clause of the Ordinance and its effect on slavery in the Northwest Territory, see Dunn's Indiana, pp. 219-260.

(27) St. Clair Papers, vol. i., p. 122, note.

(28) Political Text-Book, 1860 (McPherson), p. 53.