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IV. Slavery under the Confederation.

As the public burdens were constantly swelled, and the debts of the several States increased, by the magnitude and duration of our Revolutionary struggle, the sale of yet unsettled lands, especially in the vast and fertile West, began to be regarded as a principal resource for the ultimate discharge of these constantly augmenting liabilities: and it became a matter of just complaint and uneasiness on the part of those States--Rhode Island, New Jersey, Delaware, and South Carolina--which had no chartered claim to such lands much beyond the limits of their then actual settlements, that their partners in the efforts, responsibilities, and sacrifices of the common struggle were likely to reap a peculiar and disproportionate advantage from its success. Massachusetts, Connecticut, New York, Virginia, North Carolina, and Georgia, each claimed, under their several charters, a right of almost infinite extension westward, and, in the event of the establishment of American independence, would naturally [38] each possess a vast area of unpeopled, ungranted, and ultimately valuable lands. The landless States, with obvious reason and justice, insisted that these lands, won by the common valor and sacrifices of the whole American people, should be regarded as their common property, and to this end should be surrendered or ceded by the States claiming them respectively to the Confederation. The colonial charters, moreover, were glaringly inconsistent with each other; vast tracts being ceded by them to two or more colonies respectively; and it was a puzzling question, even for lawyers, to determine whether the earliest or the latest royal concession, if either, should have the precedence. There was but one beneficent and just solution for all disputes and difficulties in the premises; and this was a quit-claim by the respective States of their several rights and pretensions to lands exterior to their own proper boundaries, in favor of the common Confederacy. This consummation was, for the most part, seasonably and cheerfully agreed to. Connecticut made a moderate reservation of wild lands assured to her by her charter in what is now Northern Ohio. Virginia, beside retaining her partially settled country south of the Ohio, now forming the State of Kentucky, reserved a sufficiency north of the Ohio to provide liberal bounties for her officers and soldiers who fought in the war of the Revolution, conceding all other territory north of the river, and all jurisdiction over this. And it was presumed, at the close of the war, that North Carolina and Georgia would promptly make similar concessions of the then savage regions covered by their respective charters, now known as Tennessee, Alabama, and Mississippi.

Though the war was practically concluded by the surrender of Cornwallis at Yorktown, October 19, 1781, and though the treaty of peace was signed at Paris, November 30, 1782, the British did not evacuate New York till November 25, 1783; and the Ninth Continental Congress, which convened at Philadelphia on the 3d of that month, adjourned next day to Annapolis. A bare quorum of members responded to their names, but one and another soon dropped off; so that the journal of most days records no quorum present, and no business done, until about the 1st day of March, 1784. On that day, Mr. Jefferson, on behalf of tie delegates from his State, presented the deed of cession to the Confederation, by Virginia, of all her claims to jurisdiction over territory northwest of the Ohio, and to the soil also of that territory, subject to the reservation in behalf of her soldiers already noted. This deed being formally accepted, Mr. Jefferson moved the appointment of a select committee to report a plan of government for the western territory; and Messrs. Jefferson, Chase of Maryland, and Howell of Rhode Island, were appointed such committee. From this committee, Mr. Jefferson, in due time, reported an Ordinance for the government of “the territory, ceded already, or to be ceded, by individual States to the United States,” specifying that such territory extends from the 31st to the 47th degree of north latitude, so as to include what now constitutes the States of Tennessee, Alabama, and Mississippi, but which was then, and [39] remained for some years thereafter, unceded to the Union by North Carolina and Georgia. This entire territory, ceded and to be ceded, was divided prospectively by the Ordinance into embryo States, to which names were given; each of them to receive, in due time, a temporary or territorial government, and ultimately to be admitted into the Confederation of States upon the express assent of two-thirds of the preceding States; but both their temporary and their permanent governments were to be established on these fundamental conditions:

1. That they shall forever remain a part of the United States of America.

2. That, in their persons, property, and territory, they shall be subject to the government of the United States, in Congress assembled, and to the Articles of Confederation, in all those cases in which the original States shall be so subject.

3. That they shall be subject to pay a part of the Federal debts, contracted or to be contracted; to be apportioned on them by Congress, according to the same common rule and measure by which apportionments thereof shall be made on the other States.

4. That their respective governments shall be in republican forms, and shall admit no person to be a citizen who holds an hereditary title.

5. That after the year 1800 of the Christian era, there shall be neither Slavery nor involuntary servitude in any of the said States, otherwise than in punishment of crimes, whereof the party shall have been duly convicted to have been personally guilty.

The Ordinance concluded as follows:

That all the preceding articles shall be formed into a charter of compact; shall be duly executed by the President of the United States, in Congress assembled, under his hand and the seal of the United States; shall be promulgated, and shall stand as fundamental conditions between the thirteen original States and those newly described, unalterable but by the joint consent of the United States, in Congress assembled, and of the particular State within which such alteration is proposed to be made.

On the 19th of April, Congress took up this plan for consideration and action, and Mr. Spaight of N. C. moved that the fifth proposition above quoted, prohibiting Slavery after the year 1800, be stricken out of the Ordinance; and Mr. Read of S. C. seconded the motion. The question was put in this form: “Shall the words moved to be stricken out stand?” and on this question the Ays and Noes were required and taken, with the following result:

N. Hamp Mr. Foster ay, Ay.
  Mr. Blanchard ay,
Massachu Mr. Gerry ay, Ay.
  Mr. Partridge ay,
R. Island Mr. Ellery ay, Ay.
  Mr. Howell ay,
Connect Mr. Sherman ay, Ay.
  Mr. Wadsworth ay,
New York Mr. De Witt ay, Ay.
  Mr. Paine ay,
N. Jersey Mr. Dick ay, No vote.1
Pennsyl Mr. Mifflin ay, Ay.
  Mr. Montgomery ay,
  Mr. Hand ay,
Maryland Mr. Henry no, No.
  Mr. Stone no,
Virginia Mr. Jefferson ay, No.
  Mr. Hardy no,
  Mr. Mercer no,
N. Carolina Mr. Williamson ay, Divided.
  Mr. Spaight no,
S. Carolina Mr. Read no, No.
  Mr. Beresford no,

The votes of members were sixteen for Mr. Jefferson's interdiction of Slavery to seven against it, and the States stood recorded six for it to three against it. But the Articles of Confederation required an affirmative vote of a majority of all the States to sustain a proposition; and thus the restriction failed through the absence of a member from New Jersey, rendering the vote of that State null for [40] want of a quorum. Had Delaware been then represented, she might, and might not, have voted in the affirmative; but it is not probable that Georgia, had she been present, would have cast an affirmative vote. Humanly speaking, we may say that the accident — a most deplorable and fatal accident — of the absence of a member from New Jersey, prevented the adoption, at that time, of a proposition which would have confined Slavery in our country within the limits of the then existing States, and precluded all reasonable probability of subsequent contentions, collisions, and bloody strife touching its extension.

The Jeffersonian Ordinance, thus shorn of its strength — the play of Hamlet with the part of Hamlet omitted — after undergoing some further amendments, was finally adopted, four days later: all the delegates but those from South Carolina voting in its favor.

In 1787, the last Continental Congress, sitting in New York, simultaneously with the Convention at Philadelphia which framed our present Constitution, took further action on the subject of the government of the western territory, raising a Select Committee thereon, of which Nathan Dane, of Massachusetts, was Chairman. That committtee reported, July 11, “An Ordinance for the government of the Territories of the United States northwest of the Ohio,” excluding, by its silence, the territories south of that river, which were expressly brought within the purview and operation of Mr. Jefferson's Ordinance — those territories not having, as yet, been ceded by the States claiming them respectively as their peculiar possessions. Mr. Dane's ordinance embodies many provisions originally drafted and reported by Mr. Jefferson in 1784, but with some modifications. The act concludes with six unalterable Articles of Perpetual Compact between the embryo States respectively and the Union: the last of them in these words:

There shall be neither Slavery nor involuntary servitude in the said Territory, otherwise than in punishment of crimes, whereof the parties shall be duly convicted.

To this was added, prior to its passage, the stipulation for the rendition of fugitives from labor or service, which either had just been, or was just about to be, embodied in the Federal Constitution, then being framed; and in this shape the entire Ordinance was adopted, July 13, by the unanimous vote of the States then represented in Congress, including Georgia and the Carolinas; no effort having been made to strike out the inhibition of Slavery. Mr. Robert Yates, of New York, voted alone in the negative on the passage of the Ordinance, but was overborne by the vote of his two colleagues, then present.2

1 By the Articles of Confederation, two or more delegates were required to be present to cast the vote of a State. New Jersey, therefore, failed to vote.

2 As the American people of our day evidently presume themselves much wiser than their grandfathers, especially in the science of government, the more essential portion of this celebrated Ordinance of 1787 is hereto appended, as affording a standard of comparison with the latest improvements in the art of Constitution-making. It reads:

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 these principles as the basis of all laws, constitutions, and governments, which forever hereafter shall be formed in the 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 the 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, orderly manner, shall ever be molested on account of his mode of worship, or religious sentiments, in the Territory.

Art. 2. The inhabitants of the said Territory shall always be entitled to the benefits of the right of habeas corpus, and to the 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, unless for capital offenses, where the proof shall be evident or the presumption great. All fines shall be moderate, and no cruel or unusual 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 any person's property, or to demand his particular services, 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 to be made, or have force, in the said Territory, that shall, in any manner whatever, interfere with, or affect, private contracts or engagements, bona fide, and without fraud, previously formed.

Art. 3. General morality and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall be forever encouraged. The utmost good faith shall always be observed toward 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; and laws, founded in justice and humanity, shall from time to time be made for preventing wrongs being done to them, and for preserving peace and friendship with them.

Art. 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 acts and ordinances of the United States, in Congress assembled, conformable thereto. The inhabitants and settlers in the said Territory shall be subject to pay a part of the Federal debts, apportioned on them by Congress, according to the same common rule and measure by which apportionments 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 States, shall never interfere with the primary disposal of the soil by the United States in Congress assembled, nor with any regulations Congress may find necessary for securing the title in such soil to the bona fide purchasers. No taxes shall be imposed on the lands and property of the United States; and in no case shall nonresident proprietors be taxed higher than residents. The navigable waters leading into the Mississippi and Saint Lawrence, and the conveying-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 State that may be admitted into the Confederacy, without any tax, impost, or duty, therefor.

Art. 5. There shall be formed in the said Territory no less than three, nor more than five States; and the boundaries of the States, as soon as Virginia shall alter her act of cession and consent to the same, shall be 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 Post 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 Post 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 national 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 shall hereafter find it expedient, they shall have authority to form one or two States in that part of the said Territory which lies north of an east and west line drawn through the southerly bend or extremity of Lake Michigan. And whenever any of the said States shall have 60,000 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 tile 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 60,000.

Art. 6. There shall be neither Slavery nor involuntary servitude in the said Territory, otherwise than in 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 service, as aforesaid.

On passing the above Ordinance, the Yeas and Nays being required by Mr. Yates, they were taken, with the following result:

Massachusetts Mr. Holton ay, Ay.
  Mr. Dane ay,
New York Mr. Smith ay, Ay.
  Mr. Haring ay,
  Mr. Yates no,
New Jersey Mr. Clarke ay, Ay.
  Mr. Sherman ay,
Delaware Mr. Kearney ay, Ay.
  Mr. Mitchell ay,
Virginia Mr. Grayson ay, Ay.
  Mr. R. H. Lee ay,
  Mr. Carrington ay,
North Carolina Mr. Blount ay, Ay.
  Mr. Hawkins ay,
South Carolina Mr. Kean ay, Ay.
  Mr. Huger ay,
Georgia Mr. Few ay, Ay.
  Mr. Pierce ay,
Journal of Congress, vol. IV., 1787.

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