The Fathers of the Constitution: A Chronicle of the Establishment of the Union

by Max Farrand

¹ Jacob Piat Dunn, Jr., Indiana: A Redemption from Slavery, 1888.

² Although the machinery was set in motion, by the appointment of men and the beginning of work, it was not until 1789 that the survey of the first seven ranges of townships was completed and the land offered for sale.

In the meantime efforts were being made by Congress to improve the unsatisfactory ordinance for the government of the West. Committees were appointed, reports were made, and at intervals of weeks or months the subject was considered. Some amendments were actually adopted, but Congress, notoriously inefficient, hesitated to undertake a fundamental revision of the ordinance. Then, suddenly, in July, 1787, after a brief period of adjournment, Congress took up this subject and within a week adopted the now famous Ordinance of 1787.

The stimulus which aroused Congress to activity seems to have come from the Ohio Company. From the very beginning of the public domain there was a strong sentiment in favor of using western land for settlement by Revolutionary soldiers. Some of these lands had been offered as bounties to encourage enlistment, and after the war the project of soldiers’ settlement in the West was vigorously agitated. The Ohio Company of Associates was made up of veterans of the Revolution, who were looking for homes in the West, and of other persons who were willing to support a worthy cause by a subscription which might turn out to be a good investment. The company wished to buy land in the West, and Congress had land which it wished to sell. Under such circumstances it was easy to strike a bargain. The land, as we have seen, was roughly estimated at one dollar an acre; but, as the company wished to purchase a million acres, it demanded and obtained wholesale rates of two-thirds of the usual price. It also obtained the privilege of paying at least a portion in certificates of Revolutionary indebtedness, some of which were worth about twelve and a half cents on the dollar. Only a little calculation is required to show that a large quantity of land was therefore sold at about eight or nine cents an acre. It was in connection with this land sale that the Ordinance of 1787 was adopted.

The promoter of this enterprise undertaken by the Ohio Company was Manasseh Cutler of Ipswich, Massachusetts, a clergyman by profession who had served as a chaplain in the Revolutionary War. But his interests and activities extended far beyond the bounds of his profession. When the people of his parish were without proper medical advice he applied himself to the study and practice of medicine. At about the same time he took up the study of botany, and because of his describing several hundred species of plants he is regarded as the pioneer botanist of New England. His next interest seems to have grown out of his Revolutionary associations, for it centered in this project for settlement of the West, and he was appointed the agent of the Ohio Company. It was in this capacity that he had come to New York and made the bargain with Congress which has just been described. Cutler must have been a good lobbyist, for Congress was not an efficient body, and unremitting labor, as well as diplomacy, was required for so large and important a matter. Two things indicate his method of procedure. In the first place he found it politic to drop his own candidate for the governorship of the new territory and to endorse General Arthur St. Clair, then President of Congress. And in the next place he accepted the suggestion of Colonel William Duer for the formation of another company, known as the Scioto Associates, to purchase five million acres of land on similar terms, “but that it should be kept a profound secret.” It was not an accident that Colonel Duer was Secretary of the Board of the Treasury through whom these purchases were made, nor that associated with him in this speculation were “a number of the principal characters in the city.” These land deals were completed afterwards, but there is little doubt that there was a direct connection between them and the adoption of the ordinance of government.

The Ordinance of 1787 was so successful in its working and its renown became so great that claims of authorship, even for separate articles, have been filed in the name of almost every person who had the slightest excuse for being considered. Thousands of pages have been written in eulogy and in dispute, to the helpful clearing up of some points and to the obscuring of others. But the authorship of this or of that clause is of much less importance than the scope of the document as a working plan of government. As such the Ordinance of 1787 owes much to Jefferson’s Ordinance of 1784. Under the new ordinance a governor and three judges were to be appointed who, along with their other functions, were to select such laws as they thought best from the statute books of all the States. The second stage in self-government would be reached when the population contained five thousand free men of age; then the people were to have a representative legislature with the usual privilege of making their own laws. Provision was made for dividing the whole region northwest of the Ohio River into three or four or five districts and the final stage of government was reached when any one of these districts had sixty thousand free inhabitants, for it might then establish its own constitution and government and be admitted into the Union on an equal footing with the original States.

The last-named provision for admission into the Union, being in the nature of a promise for the future, was not included in the body of the document providing for the government, but was contained in certain “articles of compact, between the original States and the people and States in the said territory, [which should] forever remain unalterable, unless by common consent.” These articles of compact were in general similar to the bills of rights in State Constitutions; but one of them found no parallel in any State Constitution. Article VI reads: “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.” This has been hailed as a farsighted, humanitarian measure, and it is quite true that many of the leading men, in the South as well as in the North, were looking forward to the time when slavery would be abolished. But the motives predominating at the time were probably more nearly represented by Grayson, who wrote to James Monroe, three weeks after the ordinance was passed: “The clause respecting slavery was agreed to by the southern members for the purpose of preventing tobacco and indigo from being made on the northwest side of the Ohio, as well as for several other political reasons.”

It is over one hundred and forty years since the Ordinance of 1787 was adopted, during which period more than thirty territories of the United States have been organized, and there has never been a time when one or more territories were not under Congressional supervision, so that the process of legislative control has been continuous. Changes have been made from time to time in order to adapt the territorial government to changed conditions, but for fifty years the Ordinance of 1787 actually remained in operation, and even twenty years later it was specifically referred to by statute. The principles of territorial government today are identical with those of 1787, and those principles comprise the largest measure of local self-government compatible with national control, a gradual extension of self-government to the people of a territory, and finally complete statehood and admission into the Union on a footing of equality with the other States.

In 1825, when the military occupation of Oregon was suggested in Congress, Senator Dickerson of New Jersey objected, saying, “We have not adopted a system of colonization and it is to be hoped we never shall.” Yet that is just what America has always had. Not only were the first settlers on the Atlantic coast colonists from Europe; but the men who went to the frontier were also colonists from the Atlantic seaboard. And the men who settled the States in the West were colonists from the older communities. The Americans had so recently asserted their independence that they regarded the name of colony as not merely indicating dependence but as implying something of inferiority and even of reproach. And when the American colonial system was being formulated in 1783-87 the word “Colony” was not used. The country under consideration was the region west of the Alleghany Mountains and in particular the territory north and west of the Ohio River and, being so referred to in the documents, the word “Territory” became the term applied to all the colonies.