For three years the Ordinance of 1784 awaited the migration of settlers to the territory who would be protected by it, and, at the same time, put it into effect. Thomas Hutchins, the national "geographer," and his assistants from the several States, laid off seven ranges of townships, in the eastern part of the present State of Ohio, according to the land Ordinance of 1785, before rumours of hostile Indians drove them back. The Secretary of War was instructed to draw by lot enough of the surveyed land to satisfy such bounty land certificates as might be presented and to advertise the remainder for sale. United States troops were employed to drive out the "squatters" on the public lands, to burn their cabins, and destroy their crops. But not an acre was sold in those three years, not a certificate of national indebtedness redeemed, and not a shilling received from the land sales for the needy treasury.
The Jefferson ordinance had been intended for such western lands as might from time to time be given to the National Government. But no land south of the Ohio was surrendered. Congress, therefore, determined to cast aside the old ordinance, and to form the portion yielded into a specific territory, with a new ordinance which would allow more leeway in forming the States and give Congress more control over the domain from its incipience. Accordingly, Johnson, of Maryland, offered a new ordinance in the spring of 1786, which passed to a second reading. With the exception of the reforms noted above, it closely resembled the old ordinance. But in July following, after an interregnum of no quorum, the Congress passed, by an almost unanimous vote and after a consideration of only a few days, an entirely new law governing the territory north-west of the Ohio. It was the famous Ordinance of 1787. Its sudden transformation, inexplicable to early investigators and solved only by later research, was the result of a business transaction connected with the bounty certificates given to the Revolutionary soldiers.
During the progress of the war, it had been necessary to secure enlistment by offering bounty lands. The desire to realise on these promises was shared by officers and privates alike. Doubtless around many a camp-fire, as the war drew to a close, the value of these land certificates was discussed, and plans made for "associating" to form colonies in the "back lands" to which the soldiers were winning both right and title. The danger-line in the future would be along the frontier, where the newly won empire must be guarded from invasion both from British Canada and the Spanish Floridas, and where the advancing line of pioneers must be protected from hostile Indians. Bands of these "associators" were organised to obtain their allotments in the new country and to settle upon them. They would "plant a brave, a hardy, and respectable race of people as our advanced post," wrote Washington in presenting the project to Congress. "A settlement formed by such men would give security to our frontiers; the very name of it would awe the Indians."
One body of men, styling themselves "The Ohio Company of Associators," composed of ex-Revolutionary officers and privates residing in and about Boston, sent a botanist-parson, the Reverend Manasseh Cutler, to the Congress in the summer of 1787, to urge a proposition they had advanced for the purchase of a large tract on the Ohio River. These "adventurers," as they styled themselves, were desirous of driving a good bargain in a low price for the land and also of gaining certain guarantees from Congress which would give them as much personal liberty and protection in the new home and under the National Government as they enjoyed in their present residences under their State Governments. Cutler, provided with forty-two letters of introduction to members of Congress and prominent citizens of New York city, reached the seat of government in due time. "At 11 o'clock," he wrote in his private journal, "I was introduced to a number of members on the floor of Congress Chamber, in the City Hall, by Colonel Carrington, member from Virginia. Delivered my petition for purchasing lands for the Ohio Company, and proposed terms and conditions of purchase." Fortunately there was a quorum in Congress, the first in nearly two months. A few days later, Cutler was sent a copy of the Johnson ordinance then pending. To this he proposed "several amendments." Three days afterward, the celebrated Ordinance of 1787, for the government of that portion of the territory north-west of the Ohio, was completed and adopted to Cutler's satisfaction. "It is in a degree remodelled," he wrote in his journal. "The amendments I proposed have all been made except one, and that is better qualified."
Nevertheless it took a week more of haggling and lobbying before acceptable terms of sale could be agreed upon. Another company composed of "principal characters" in the city had to be taken into the deal in a "profound secret." Arthur St. Clair, the president of the Congress, had to be accepted by the Associators as the governor of the territory, in order to gain his support. Cutler had to finesse by threatening to buy from some of the States which had land for sale within their borders. It is unfortunate for those who believe that our fathers were actuated entirely by disinterested motives and utterly devoid of political guile that the parson lobbyist kept such a candid diary. Day by day the business proceeded, Cutler even making a side visit to Philadelphia while his leaven was working. At last even "that stubborn mule of a Kearney," as the disgusted agent called him, was "left alone," a sufficient number of votes was secured, and Cutler was receiving congratulations on the prospects of the Ohio Company.
"By this Ordinance," he wrote, "we obtained the grant of near 5,000,000 of acres of land, amounting to three millions 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 in America are concerned."
The importance of this transaction lies not only in the fact that it was the first sale of public lands in the United States, but that the government established for the territory formed many precedents for later Territories and States. Some of its provisions deserve a close examination. The changes made in the Johnson ordinance to satisfy the Ohio Company are found chiefly in the appended six articles of the Ordinance of 1787. These formed a guarantee that citizens in the territory deprived of the protection of their States would have the same personal rights which they enjoyed before leaving the States. The United States, later destined to become a protector, was feared lest it might be an oppressor. Such individual rights as habeas corpus, trial by jury, freedom of conscience, possession of property, and similar birthrights of Englishmen, had been secured in the States by incorporating them in the various State Constitutions under the general name of "declaration of rights" or "bill of rights." Without such specific title, they were placed in the Ordinance of 1787. The sixth article, no doubt also demanded by Cutler, incorporated the very wording of Jefferson's rejected anti-slavery clause of three years before, except making it immediate instead of after 1800. The New England Associators were unwilling to offer their free labour in competition with slave labour in their new home. The idea was general. "The total exclusion of slavery from the State" had been a prominent provision in a transitory association in Connecticut four years before.
[Illustration: NATHAN DANE'S DRAFT OF THE ANTI-SLAVERY CLAUSE IN THE ORDINANCE OF 1787. The authorship of this article of the Ordinance has been in much dispute. Benton attributed it to a similar provision, drafted by Jefferson, which was struck out of the Ordinance of 1784. Northern men gave the credit to Nathan Dane, a Massachusetts jurist, who was in Congress in 1787. During the sectional feeling aroused over the admission of Missouri in 1820, a dispute arose in Congress over the respective claims of Jefferson and of Dane. Of this, Dane himself said: "In April, 1820, search was made for the original manuscript of the Ordinance of 1787. Daniel Bent's answer was 'that no written draft could be found'; but there was found attached to the printed Ordinance in my handwriting the sixth article, as it now is, that is, the slave article." The original is now in the Library of Congress, Manuscript Division. The signature of Chas. Thomson, Jr., calls attention to the faithful secretary of the Continental Congress during its entire existence.]
The century contest over slavery in the United States made that factor so prominent in national history that it overshadows matters of equal importance in many transactions. The anti-slavery provision of the Ordinance of 1787 has been extravagantly praised ever since the oratory of Daniel Webster first called general attention to it. Sectional partisans have exhausted logic in trying to trace the authorship to Jefferson, a Southern man, or to Dane, a Northern man. The North has credited it to the persistence of New England; the South, pointing to the five Southern affirmative votes out of the eight, has attributed it to the indulgence of their section. In recognising this first anti-slavery action of the National Government, Northern orators have overlooked an attendant clause, the first national fugitive slave law. It paved the way for a similar provision in the Constitution and led to the obnoxious slave rendition laws of later years. In praising the indulgence of the South, the eulogists of that section have failed to consider the price the New England Associators paid in this first slavery compromise of the nation.
When the blinding passion of the slavery question is eliminated from a consideration of this ordinance some other beneficent provisions, added through the desire to satisfy the New England purchasers, begin to appear. They are taken largely from the "bill of rights" placed in the first constitution of the State of Virginia by George Mason, and copied in many of the later constitutions, including that of the United States. They seek to guarantee the rights of the individual against the encroachments of the Government; to embody the principles which the English barons secured at Runnymede; to secure the inheritances left to the English-speaking people by Hampden and Pym. Although many of the early State Constitutions contained a guarantee of religious freedom, habeas corpus, trial by jury, rights to property, and regard for contracts, as has just been stated, these principles had not been expressed in the Articles of Confederation and the General Government was not bound in any manner to grant them in the western territory. But their incorporation in the ordinance gave assurance that their benefits were not to be confined to the original States.