Magazine of western history, illustrated, Vol. I, No. 1, November 1884

by Various

ARTHUR ST. CLAIR AND THE ORDINANCE OF 1787.

St. Clair is an honored name in history. First in Normandy, and after the eleventh century for many generations in Scotland, its possessors were men of wealth and a high order of intelligence, and were among the most prominent characters of the realm. They remained loyal to the crown through its varying fortunes, and when Scotland passed under the dominion of England, continued their allegiance to royalty. They showed a rare genius for military life. This bent of mind was characteristic of the St. Clair whose career in part is here briefly outlined.

Arthur St. Clair, whose father was a younger son and possessed neither lands nor title, was born in the year 1734, in the town of Thurso in Caithness, Scotland. Thurso is a place of some 3,500 inhabitants, a quiet village lying to the north of Glasgow and Edinburgh, and close to the Atlantic seaboard. Its chief claim to fame no doubt rests upon having been the birthplace of one who became so prominent in American affairs, gave such valuable aid in securing American independence, and had so large a share in the formation and administration of the government of a considerable portion of the American people. To his father he owed little, to his mother much. Educated at the University of Edinburgh, his parents intended him for a professional career. At an early age he began the study of medicine, which, upon the death of his mother in 1757, he abandoned, and through influential friends obtained a commission as ensign in the second battalion of the Sixtieth Regiment of Foot, known as the Royal American Regiment. It consisted of four battalions of 1,000 men each. In 1758 Major-general Amherst was made colonel of this regiment, and commander-in chief of all the forces in America, and on the 28th day of May of the same year, arrived in Canada with his army. Thus came to the western world in the twenty-fourth year of his age, Arthur St. Clair, with the laudable ambition of making, if possible, a fortune, but certainly a good and honored name. His first lessons in the art of war were taken under the tuition of such veterans as Lawrence, Murray and Wolfe, the story of whose heroic deeds for English supremacy in Canada is familiar to every reader. In every position in which he was placed young St. Clair acquitted himself with rare bravery. He soon received a lieutenant’s commission, serving with distinction in the battle at the mouth of the Montmorency, and in the siege of Quebec, where Gen. Wolfe lost his life, but where the French, on the 8th day of September 1759, surrendered, and Canada became an English province, though articles of capitulation were not executed until nearly a year later.

From Canada St. Clair went to Boston, where he made the acquaintance of Miss Phœbe Bayard, daughter of one of the first families of that city, whose mother was a half sister of Governor James Bowdoin. For Miss Bayard young St. Clair formed a strong attachment, and they were married, probably in the year 1761. In the Ligonier Valley, western Pennsylvania, St. Clair, for services in Canada, received a grant of one thousand acres of land, and thither, in the year 1764 or 1765, he removed. He set actively to work to improve his property. He built a handsome residence, and the first grist mill in western Pennsylvania. Many Scotch families sought a residence in this beautiful and fertile valley. He was the leading spirit in this western colony, and in 1770 was appointed surveyor, a justice of the court of quarter sessions and common pleas, and a member of the Governor’s council for the district of Cumberland, or Cumberland County. When Bedford County was formed in 1771, and Westmoreland in 1773, he was appointed to fill like offices of trust for these counties respectively. Here he led a busy life for two years, when upon the outbreak of hostilities with England he unsheathed his sword and proffered his services in defence of the country of his adoption.

It is not within the scope of this sketch, which is more immediately concerned with the relation he bore to the Ordinance of 1787, and that part of his history which records the acts of his administration as the first governor of the Northwest Territory, to follow the fortunes of Gen. St. Clair through the war for independence. Suffice it to say that quitting private life when its comforts were greatest and his financial affairs the most prosperous, he rendered to his country valuable service in Canada in the summer of 1776, at the battles of Trenton and Princeton in the winter of 1776–7, rose to the rank of Major-general in the northern department in 1777, and afterwards, as a member of Washington’s military family, won the confidence and friendship of his chief to such a degree that they were never withdrawn even when he was overtaken by reverses; and that he returned to civil life at the close of the struggle to find that to his country he had sacrificed not only eight years of the very prime of his life, but likewise his fortune and the emoluments of his lucrative offices. His first office after the war was that of member of the board of censors, whose duties were to see that the laws were efficiently and honestly executed. St. Clair became a member of Congress in 1786, and in 1787 its President. This was the year in which the ordinance for the government of the Northwest Territory was adopted. It is a remarkable coincidence that this gentleman should have presided over the body that enacted this grand Charter of Freedom, and afterwards should have been the first executive officer, as governor of the Northwest Territory, to administer and enforce its laws. General St. Clair’s connection with this great and beneficent ordinance is of very great interest, intensified, however, by the fact that Mr. William Frederick Poole, in an able and well written contribution to the North American Review in 1876, on the authorship of the Ordinance, did him a great injustice by imputing to him improper motives wholly foreign to his character. For a full understanding of the charge and its complete refutation a brief history of the Ordinance will be necessary.

In 1784 Thomas Jefferson had prepared and reported a comprehensive measure for the government of the Northwest Territory, from which ten States were to be formed. It contained among other provisions the following stipulation: “That, after the year 1800 of the Christian era, there shall be neither slavery nor involuntary servitude in any of the said (ten) States, otherwise than in the punishment of crimes, whereof the party shall have been duly convicted to have been personally guilty.” This provision was stricken out, and the ordinance was passed, but owing to the fact that the lands had not been surveyed nor Indian titles perfected, it became inoperative and remained a dead letter. In 1786, a memorial having been received from the inhabitants of Kaskaskia, praying for the organization of a territorial government, a committee consisting of Mr. Johnson of Connecticut, Mr. Pinckney of South Carolina; Mr. Smith of New York, Mr. Dane of Massachusetts, and Mr. Henry of Maryland, was appointed to draft a suitable measure, and April 26, 1787, reported a code of laws for the temporary government of the Territory, which reached a third reading on the 10th of May, but was not brought to a final vote. At this juncture there appeared at the door of Congress a gentleman to whom more than to any other the people of the northwestern States are indebted for the prompt action by Congress which gave them this great bill of rights, aptly called the Ordinance of Freedom.

This gentleman was the Rev. Manasseh Cutler of Ipswich, Massachusetts. He came before Congress as the agent of the Ohio Land Company. He wished to purchase for that company a million and a half—and finally did purchase nearly five million—acres of land in the Northwest Territory. He was well fitted for the business he had undertaken. He was a ripe scholar, a graduate of Yale College, a distinguished scientist, an able divine, an eloquent speaker, and more than all, a wily diplomatist, possessed of a fine and commanding presence and courtly manners. He came to Congress armed with letters of introduction to Gen. St. Clair, the President of that body, General Knox, Richard Henry Lee, Melancthon Smith, Colonel Carrington and others.

Dr. Cutler greatly desired to make the purchase for his company, but stipulated, as a necessary condition of purchase, for the passage of a suitable charter of laws for the government of the Territory. The Ohio Company was composed chiefly of Massachusetts men, accustomed to good laws wisely administered, and would not invite their neighbors and friends to immigrate to the far west to settle in a country for which no good system of government had been provided. Hence this was the first matter to be looked into. Dr. Cutler arrived in New York on the 5th day of July, Thursday. On Friday, the 6th, he presented his letters of introduction to President St. Clair and a number of members of Congress. The 7th he passed in extending his acquaintance and explaining his business. The 8th was Sunday. On the 9th he secured the appointment by President St. Clair of a committee who favored such a system of laws for the Northwest Territory as Dr. Cutler wished to see adopted. This committee consisted of Colonel Carrington, a personal friend, as chairman, and Richard Henry Lee of Virginia, Mr. Dane of Massachusetts, Mr. Kean of South Carolina, and Mr. Smith of New York. These gentlemen prepared an ordinance, the famous Ordinance of 1787, submitted it to Dr. Cutler for his opinion or Amendment, introduced it to Congress, had it read, amended, and on the 13th day of July procured its passage. This was quick work, and the way was now clear for the main business which Dr. Cutler had in hand—the negotiation of the purchase of lands for the Ohio Company. A committee on lands was appointed for the purpose of negotiating with the Ohio Land Company’s agent for the sale of the lands, having the same chairman, Dr. Cutler’s friend, Colonel Carrington, with Rufus King, James Madison, Mr. Dane and Mr. Benson as the other members.

The Ordinance having become a law on the 13th day of July, the negotiation for the Ohio Company’s purchase was concluded on the 27th of the same month, and terms agreed upon. On the 5th day of October, 1787, officers for the government of the new territory were elected by Congress as follows: Arthur St. Clair, Governor; James M. Varnum, Samuel Holden Parsons and John Armstrong, Judges, and Winthrop Sargent, Secretary. Mr. Armstrong declining, the vacancy was filled by the appointment of John Cleves Symmes. The charge against General St. Clair, made by Mr. Poole, is that Dr. Cutler, when he arrived in New York and called on the President of Congress to obtain the appointment of a committee to draft and report a system of laws for the Northwest Territory that should be friendly to his terms of purchase, met with a cool reception, and, to quote from Mr. Poole, “he found that General St. Clair wanted to be Governor of the Northwest Territory; and Dr. Cutler, representing the interests of the Ohio Company, intended that General Parsons, of Connecticut, should have the office. But he must have General St. Clair’s influence, and found it necessary to pay the price. From the moment he communicated this decision, General St. Clair was warmly engaged in his interests.”

This is an extremely unjust imputation upon a gentleman who in all the affairs of life showed himself to be the very soul of honor. That it is false in every particular, a bare recital of the above facts, coupled with the additional fact that Dr. Cutler in the daily journal he kept makes no reference to General St. Clair in connection with the governorship until the evening of the 23rd, ten days after the passage of the ordinance, is clear and sufficient proof. The extract from the journal containing this reference is as follows:

July 23rd. * * * * Spent the evening with Colonel Grayson and members of Congress from the southward, who were in favor of a contract. Having found it impossible to support General Parsons as a candidate for Governor, after the interest that General St. Clair had secured, and suspecting that this might be some impediment in the way (for my endeavors to make interest for him [Parsons] were well known), and the arrangements for civil officers being on the carpet, I embraced the opportunity frankly to declare that for my own part—and ventured to engage for Mr. Sargent—if General Parsons could have the appointment of first judge, and Sargent secretary, we would be satisfied; and I heartily wished that his excellency, General St. Clair, might be governor, and that I would solicit the eastern members to favor such an arrangement. This I found rather pleasing to the southern members, and they were so complacent as to ask repeatedly what officer would be agreeable to me in the western country.

That General St. Clair should have received the Ohio Company’s agent coolly on the 6th day of July, and on the 9th of the same month appointed as chairman of the committee to treat with Dr. Cutler the very man the latter wished appointed, Col. Carrington, a personal friend; that General St. Clair wanted the governorship, and remained hostile to Dr. Cutler’s plans, until Dr. Cutler gave up Parsons and came to his support on the 23rd day of July, is on the face of it so improbable that, without any direct evidence to the contrary, no fair minded person at all familiar with St. Clair’s character could give it credence. However, we have the very best proof of the untruthfulness of Mr. Poole’s statement in General St. Clair’s own words. [^[12]]In a letter to the Hon. William Giles, written some time after his election as governor, he says the office was forced upon him by his friends; that he did not desire it and would not have accepted it but for “the laudable ambition of becoming the father of a country, and laying the foundation for the happiness of millions then unborn.”

All this shows conclusively that General St. Clair was friendly to the land negotiation from the start; that he clearly saw the advantages to the government of the sale of so large a body of western lands; that he received Dr. Cutler cordially, and warmly espoused his cause from the first; that he had no thought of the governorship until pressed by his friends for the office; that Dr. Cutler discovering the drift of sentiment in his favor concluded it would be futile to longer endeavor to obtain interest for General Parsons, the man of his choice. St. Clair, before Dr. Cutler announced himself in his favor for the governorship, appointed a committee favorable to the land negotiation to draft the ordinance for the government of the Territory; and in fact there is good reason for believing that some of the grand principles of that great charter owe their incorporation in that instrument to his wisdom and foresight. Everything convinces that General St. Clair’s relation to Dr. Cutler, to the land negotiation and to the governorship, was in all respects creditable to the dignity of his office and to his personal honor.

The Ordinance of 1787 was the product of the highest statesmanship. It ranks among the grandest bill of rights ever drafted for the government of any people. It secured for the inhabitants of the great States formed from the Northwest Territory religious freedom, the inviolability of private contracts; the benefit of the writ of habeas corpus and trial by jury; the operation of the common law in judicial proceedings; urged the maintenance of schools and the means of education; declared that religion, morality and knowledge were essential to good government; exacted a pledge of good faith toward the Indians; and proscribed slavery within the limits of the Territory. It provided for the opening, development and government of the Territory, and formed the basis of subsequent State legislation. Chief Justice Chase says of it: “When they (the people) came into the wilderness, they found the law already there. It was impressed on the soil while as yet it bore up nothing but the forest. * * * Never probably in the history of the world did a measure of legislation so accurately fulfill, and yet so mightily exceed, the anticipation of the legislators. * * * The Ordinance has well been described as having been a pillar of cloud by day and of fire by night in the settlement of the Northwest States.” Judge Timothy Walker, in 1837 in an address delivered at Cincinnati, says: “Upon the surpassing excellence of this Ordinance no language of panegyric would be extravagant. The Romans would have imagined some divine Egeria for its author. It approaches as nearly absolute perfection as anything to be found in the legislation of mankind. * * * It is one of those matchless specimens of sagacious foresight which even the reckless spirit of innovation would not venture to assail.” Daniel Webster, in his famous reply to Hayne, bore this testimony to the excellence of this measure: “We are accustomed to praise the lawgivers of antiquity; we help to perpetuate the fame of Solon and Lycurgus; but I doubt whether one single law of any lawgiver, ancient or modern, has produced effects of more distinct, marked and lasting character than the Ordinance of 1787. We see its consequences at this moment, and we shall never cease to see them, perhaps, while the Ohio shall flow.”

The people of Ohio, of the farther west, and of the whole country cannot become too familiar with a measure which has received so great praise from such high sources. We publish the Ordinance in full.

An ordinance for the government of the territory of the United States northwest of the river Ohio:

Be it ordained by the United States in Congress assembled, That the said Territory for the purpose of temporary government be one district, subject, however, to be divided into two districts, as future circumstances may, in the opinion of Congress, make it expedient.

Be it ordained by the authority aforesaid, That the estates both of resident and non-resident proprietors in said Territory dying intestate, shall descend to and be distributed among the children, and the descendants of a deceased child in equal parts—the descendants of a deceased child, or grandchild, to take the share of the deceased parent in equal parts among them; and where there shall be no children or descendants, then in equal parts to the next of kin in equal degree; and among collaterals, the children of a deceased brother or sister of the intestate shall have, in equal parts among them, the deceased parent’s share, and there shall in no case be a distinction between kindred of the whole and half blood, saving in all cases to the widow of the intestate her third part of the real estate for life, and [where there shall be no children of the intestate] one third part of the personal estate; and this law relative to descents and dower shall remain in full force until altered by the legislature of the district. And until the governor and judges shall adopt laws, as hereinafter mentioned, estates in the said Territory may be divided or bequeathed by wills, in writing, signed and sealed by him or her, in whom the estate may be [being of full age] and attested by three witnesses; and real estate may be conveyed by lease or release, or bargain and sale, signed, sealed and delivered by the person, being of full age, in whom the estate may be, and attested by two witnesses, provided such wills lie duly proved, and such conveyance be acknowledged, or the execution thereof duly proved, and be recorded within one year after proper magistrates, court and registers shall be appointed for that purpose; and personal property may be transferred by delivery, saving, however, to the French and Canadian inhabitants and other settlers of the Kaskaskies, St. Vincent’s and the neighboring villages, who have heretofore professed themselves citizens of Virginia, their laws and customs now in force among them, relative to the descent and conveyance of property.

Be it ordained by the authority aforesaid, That there shall be appointed, from time to time, by Congress, a governor, whose commission shall continue in force for the term of three years, unless sooner revoked by Congress. He shall reside in the district and have a freehold estate therein in one thousand acres of land while in the exercise of his office. There shall be appointed, from time to time, by Congress, a secretary, whose commission shall continue in force for four years, unless sooner revoked; he shall reside in the district and have a freehold estate therein in five hundred acres of land while in the exercise of his office; it shall be his duty to keep and preserve the acts and laws passed by the legislature, and the public records of the district, and the proceedings of the governor in his executive department; and transmit authentic copies of such acts and proceedings every six months to the secretary of Congress. There shall also be appointed a court to consist of three judges, any two of whom to form a court, who shall have a common law jurisdiction, and reside in the district, and have each therein a freehold estate in five hundred acres of land while in the exercise of their offices; and their commissions shall continue in force during good behavior.

The governor and judges, or a majority of them, shall adopt and publish in the district such laws of the original States, criminal and civil, as may be necessary and best suited to the circumstances, and report them to Congress, from time to time; which laws shall be in force in the district until the organization of the general assembly therein, unless disapproved by Congress; but afterwards the legislature shall have authority to alter them as they shall think fit.

The governor, for the time being, shall be commander-in-chief of the militia, appoint and commission all officers in the same below the rank of general officers; all general officers shall be appointed and commissioned by Congress.

Previous to the organization of the general assembly, the governor shall appoint such magistrates and other civil officers, in each county or township, as he shall find necessary for the preservation of the peace and good order in the same. After the general assembly shall be organized, the power and duties of magistrates and other civil officers shall be regulated and defined by the said assembly; but all magistrates and other civil officers not herein otherwise directed, shall, during the continuance of this temporary government, be appointed by the governor.

For the prevention of crimes and injuries the laws to be adopted or made shall have force in all parts of the district, and for the execution of process, criminal and civil, the governor shall make proper divisions thereof; and he shall proceed, from time to time, as circumstances may require, to lay out the parts of the district, in which the Indian titles shall have been extinguished, into counties and townships, subject, however, to such alterations as may thereafter be made by the legislature.

So soon as there shall be five thousand free male inhabitants of full age in the district, upon giving proof thereof to the governor, they shall receive authority, with time and place, to elect representatives from their counties or townships to represent them in the general assembly; provided that for every five hundred free male inhabitants, there shall be one representative, and so on, progressively, with the number of free male inhabitants shall the right of representation increase until the number of representatives shall amount to twenty-five; after which the number and proportion of the representatives shall be regulated by the legislature; provided that no person be eligible or qualified to act as a representative unless he shall have been a citizen of one of the United States three years, and be a resident in the district, or unless he shall have resided in the district three years; and in either case, shall likewise hold in his own right, in fee simple, two hundred acres of land within the same; provided also that a freehold in fifty acres of land in the district, having been a citizen of one of the States and being resident in the district, or the like freehold and two years’ residence in the district, shall be necessary to qualify a man as an elector of a representative.

The representatives thus elected shall serve for the term of two years; and in case of the death of a representative, or removal from office, the governor shall issue a writ to the county or township for which he was a member to elect another in his stead, to serve for the residue of the term.

The general assembly or legislature shall consist of the governor, legislative council, and a house of representatives. The legislative council shall consist of five members to continue in office five years, unless sooner removed by Congress, any three of whom may be a quorum; and the members of the council shall be nominated and appointed in the following manner, to wit: As soon as representatives shall be elected, the governor shall appoint a time and place for them to meet together, and when met they shall nominate ten persons, residents in the district, and each possessed of a freehold in five hundred acres of land, and return their names to Congress, five of whom Congress shall appoint and commission to serve as aforesaid; and whenever a vacancy shall happen in the council by death or removal from office, the house of representatives shall nominate two persons, qualified as aforesaid, for each vacancy, and return their names to Congress, one of whom Congress shall appoint and commission for the residue of the term. And every five years, four months at least before the expiration of the time of service of the members of the council, the said house shall nominate ten persons, qualified as aforesaid, and return their names to Congress, five of whom Congress shall appoint and commission to serve as members of the council five years, unless sooner removed. And the governor, legislative council, and house of representatives shall have authority to make laws, in all cases, for the good government of the district, not repugnant to the principles and articles in this ordinance established and declared. And all bills having passed by a majority in the house and by a majority in the council, shall be referred to the governor for his assent; but no bill or legislative act whatever, shall be of any force without his assent. The governor shall have power to convene, prorogue and dissolve the general assembly when, in his opinion, it shall be expedient.

The governor, judges, legislative council, secretary, and such other officers as Congress shall appoint in the district shall take an oath or affirmation of fidelity, and of office; the governor before the President of Congress, and all other officers before the governor. As soon as legislature shall be formed in the district, the council and house assembled in one room, shall have authority, by joint ballot, to elect a delegate to Congress, who shall have a seat in Congress, with a right of debating, but not of voting, during this temporary government.

And for extending the fundamental principles of civil and religious liberty, which form the basis whereon these republics, their laws, and constitutions, are erected; to fix and establish those principles as the basis of all laws, constitutions, and governments, which forever hereafter shall be formed in said Territory; to provide, also, for the establishment of States, and permanent government therein, and for their admission to a share in the Federal councils on an equal footing with the original States, at as early periods as may be consistent with general interest.

It is hereby ordained and declared by the authority aforesaid, That the following articles shall be considered as articles of compact between the original States and the people and States in the said Territory, and forever remain unalterable unless by common consent, to wit:

“Article 1. No person demeaning himself in a peaceable and orderly manner shall ever be molested on account of his mode of worship or religious sentiments in the said Territory.

“Article 2. The inhabitants of said Territory shall always be entitled to the benefits of the writ of habeas corpus and of trial by jury; of a proportionate representation of the people in the legislature, and of judicial proceedings according to the course of the common law. All persons shall be bailable except for capital offences, where the proof shall be evident or the presumption great. All fines shall be moderate, and no unusual or cruel punishment shall be inflicted. No man shall be deprived of his liberty or property but by the judgment of his peers, or the law of the land; and should the public exigencies make it necessary, for the common preservation, to take away any person’s property, or to demand his particular service, full compensation shall be made for the same; and in the just preservation of rights and property it is understood and declared that no law ought ever be made, or have force in the said Territory, that shall in any manner whatever interfere with or effect private contracts or engagements, bona fide, and without fraud, previously formed.

“Article 3. 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 utmost good faith shall always lie observed towards the Indians; their lands and property shall never be taken from them without their consent; and in their property, rights and liberty they shall never be invaded or disturbed, unless in just and lawful wars, authorized by Congress; but laws founded in justice and humanity, shall, from time to time, be made for preventing wrong being done to them, and for preserving peace and friendship with them.

“Article 4. The said Territory, and the States which may be formed therein, shall forever remain a part of this confederacy of the United States of America, subject to the articles of confederation, and to such alterations therein as shall be constitutionally made, and to all the acts and ordinances of the United States in Congress assembled, conformable thereto. The inhabitants and settlers in said Territory shall be subject to pay a part of the Federal debts, contracted or to be contracted, and a proportional part of the expenses of government, to be apportioned on them by Congress, according to the same common rule and measure by which the apportionments thereof shall be made on the other States; and the taxes for paying their proportion shall be laid and levied by the authority and direction of the legislatures of the district or districts, or new States, as in the original States, within the time agreed upon by the United States in Congress assembled. The legislatures of those districts or new States shall never interfere with the primary disposal of the soil by the United States in Congress assembled, nor with any regulation Congress may find necessary for securing the title to such soil to bona fide purchasers. No tax shall be imposed on lands, the property of the United States; and in no case shall non-resident proprietors be taxed higher than residents. The navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways, and forever free, as well to the inhabitants of the said Territory as to the citizens of the United States, and those of any other States that may be admitted into the confederacy, without any tax, import or duty therefor.

Article 5. There shall be formed in the said Territory not less than three nor more than five States; and the boundaries of the Stales as soon as Virginia shall alter her act of cession and consent to the same, shall become fixed and established as follows, to wit: The western State in the said Territory shall be bounded by the Mississippi, the Ohio and Wabash Rivers; a direct line drawn from the Wabash and Port Vincent’s due north to the territorial line between the United States and Canada; and by the said territorial line to the Lake of the Woods and Mississippi. The middle State shall be bounded by the said direct line, the Wabash from Port Vincent’s to the Ohio, by the Ohio, by a direct line drawn due north from the mouth of the Great Miami to the said territorial line, and by the said territorial line. The eastern State shall be bounded by the last mentioned direct line, the Ohio, Pennsylvania, and the said territorial line; provided, however, and it is further understood and declared, that the boundaries of these three States shall be subject so far to be altered that, if Congress should hereafter find it expedient, they shall have authority to form one or two States in that part of the Territory which lies north of an east and west line, drawn through the southerly bend or extreme of lake Michigan. And whenever any of the said States shall have sixty thousand free inhabitants therein, such State shall be admitted by its delegates into the Congress of the United States, on an equal footing with the original States, in all respects whatever, and shall be at liberty to form a permanent constitution and State government; provided the constitution and government so to be formed shall be republican, and in conformity to the principles contained in these articles; and so far as it can be consistent with the general interest of the confederacy, such admission shall be allowed at an earlier period and when there may be a less number of free inhabitants in the State than sixty thousand.

“Article 6. 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 labor or service is lawfully claimed in any one of the original States, such fugitive may be lawfully reclaimed, and conveyed to the person claiming his or her labor or services as aforesaid.”

The authorship of this grand charter of rights, vouchsafed to a people who to-day number many millions and are living happily under its benign influence, bears the marks of wisdom the most profound, of statesmanship of the highest order, of foresight akin to inspiration. The question then very naturally arises for eager solution, “Who was the author?” or if more than one, “Who were the authors?” The question has never been, probably never will be, fully and definitely answered to the satisfaction of every inquirer. The claims of Thomas Jefferson, of Nathan Dane, of Dr. Manasseh Cutler have in turn been ably supported by various writers. The truth no doubt is that all these gentlemen, together with Colonel Carrington and Richard Henry Lee of Virginia, and Arthur St. Clair, the President of Congress, were concerned in its preparation. More importance is attached to the authorship of Articles III and VI, especially of the latter, than to any other portion of the instrument. Religious liberty, the provision for the spread of education, the manner in which the Indians should be treated, and the inhibition of slavery, are its distinguishing features. To whom are we chiefly indebted for their place in the Ordinance?

Jefferson has a strong claim upon our gratitude, for it was he who drafted the anti-slavery clause in the inoperative ordinance of 1784, from which the anti-slavery clause (Article VI) of the Ordinance of 1787, no doubt, was copied. The similarity in the phraseology of the two clauses is too striking to admit of a doubt of this, as any one who will carefully read and compare the two will readily perceive. To Jefferson, then, we owe much, but it must be remembered that he was not a member of the last Congress of the old confederation, but was at that time our minister to France. Nathan Dane was the committee’s secretary, and no doubt the original draft is in his handwriting. He had prepared and reported an ordinance in May previous which was not passed, and which contained none of the grand principles that characterized the ordinance under question. If he were the author of any part of the latter, it was an unessential part, as he afterwards, in a letter to Mr. Rufus King published in Spencer’s History of the United States, clearly shows that he had no adequate conception of the grand features of the Ordinance. Moreover he declined to offer the anti-slavery clause as a part of the Ordinance at its first reading because he believed it could not pass, and only presented it the day before the final adoption of the Ordinance, after having learned the feeling of Congress toward the slavery question.

It is undoubtedly true that to no one man are the people who have enjoyed and to-day enjoy the benefits of the Ordinance, so much indebted as to Dr. Manasseh Cutler. It was he who directed the battle in its favor; it was he who secured the appointment of his friends, Carrington and Lee, on the committee; who urged the necessity of the adoption of the Ordinance before the land purchase could be made; who insisted, as representative of the company which was most immediately concerned in the nature of the laws that should form the government of the Territory, upon the anti-slavery clause, and, to win the southern members to its support, favored the addition of the proviso for the rendition of fugitive slaves; and without doubt it was he who urged the insertion of what relates to religion, morality and education. At this time anti-slavery sentiment in Virginia was popular with the leading men of that State, and with the protection to the property rights in the slave which the proviso afforded, the Virginia members of the committee were readily won to the support of the anti-slavery clause. What, therefore, Dr. Cutler accomplished in behalf of the Ordinance was of the greatest importance. He obtained the appointment of a new committee favorable to such a measure as he was solicitous to have adopted; urged the insertion of many of the grand principles it contained; won such friendly interest for it from opposing elements as to insure for it certain victory, and was instrumental in securing its passage.

Judge Ephraim Cutler, in 1849, received a letter from his brother, Temple Cutler, in which he says: “Hon. Daniel Webster is now convinced that the man who suggested some of its articles was our father,” and in the same year Judge Cutler wrote as follows:

I visited my father at Washington during the last session he attended Congress (1804).... We were in conversation relative to the political concerns of Ohio, the ruling parties, and the effects of the constitution (of Ohio) in the promotion of the general interest; when he observed that he was informed that I had prepared that portion of the Ohio constitution which contained the ‘part of the ordinance of July, 1787, which prohibited slavery. He wished to know if it was a fact. On my assuring that it was, he observed that he thought it a singular coincidence, as he himself had prepared that part of the ordinance while he was in New York negotiating the purchase of the lands for the Ohio Company. I had not seen the journal he kept while he was in New York at that time....[^[13]]

Arthur St. Clair’s connection with the Ordinance must have been, from the nature of the position he occupied as well as from the character of the man, of very considerable importance. There is good reason for believing him to be the author of the clause relating to the treatment of the Indians. No other member of the House had a better acquaintance with the Indian character, or better appreciated what was by right due to the red man, and it is therefore more than likely that the preparation of this clause was entrusted to him, though there exists no positive proof of the fact.

General St. Clair’s history as Governor of the Northwest Territory will be reserved for future publication in this Magazine.

William W. Williams.