Slave Nation (18 page)

Jefferson’s proposal for delayed emancipation has been criticized as giving sixteen years for slavery to become established in the territories.
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Surely the prospective operation was calculated to reduce southern opposition. Jefferson’s proposal also required that the new states created in the territory be bound by the Articles of Confederation. Those Articles, as we have seen, permitted slave owners to take their property into other states without losing them.
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Thus the states would have been prohibited from fully abolishing slavery even within their own borders. If adopted, his proposal would have created a conflict in the year 1800 with the Articles of Confederation permitting free movement of property. Jefferson’s antislavery amendment applied to all present and future territory.
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Its defeat meant that slavery continued to be lawful in the entire territory.

Jefferson and his colleagues believed that a law was necessary to prevent “this abominable crime from spreading itself over the new country.”
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Otherwise, why propose a statute at all? When his proposal was defeated, as his above quoted letter indicates, he believed that slavery remained lawful. He was not alone in this view. In fact, there was no other view. His conclusion was shared by all who addressed the slavery question. Those who opposed slavery in the territory believed that it was necessary to pass a law to prohibit it. No one argued that slavery had been abolished by the cession of the land to the Continental Congress. They agreed that the defeat of Jefferson’s proposal meant that slavery was permitted in all the territory. The historians who concluded that Congress in 1787 had tacitly approved of southern slavery when it prohibited slavery north of the Ohio River ignored the fact that “everyone knew” that slavery was already lawful in the South.
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The defeat of Jefferson’s 1784 proposal did not discourage the persistent Timothy Pickering from continuing to seek slave-free land for former soldiers. In early 1785, he urged Rufus King, then a member of the Continental Congress, to forbid slavery in the territories before they were settled:

It will be infinitely easier to prevent the evil at first than to eradicate it or check it at any future time.…To suffer the continuance of slaves until they can gradually be emancipated in states already overrun with them may be pardonable, because unavoidable without hazarding greater evils; but to introduce them into countries where none now exist, countries which have been talked of— which we have boasted of—as an asylum to the oppressed of the earth—can never be forgiven. For God’s sake, then, let one more effort be made to prevent so terrible a calamity.
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Pickering’s letter does not suggest that slavery might be illegal without the passage of new legislation, although his abhorrence of slavery drove him to consider a northern separation from the union in the early nineteenth century.
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The rejection of Jefferson’s proposal was a vote by Congress that slavery continued to be lawful in the territory. There was no realistic third possibility.
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This form of legal reasoning—the rejection of one proposition meant the approval of its opposite—was commonly used by lawyers of that era.
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Chief Justice John Marshall used it in one of the most important decisions of the Supreme Court in its early years. In
McCulloch v. Maryland,
he held that Congress had the power to create a national bank, even though this power was not expressed in the Constitution. He reasoned that the word “expressly” had appeared in the Articles of Confederation in order to restrict Congress to powers which were named in the Articles.
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However, the word “expressly” did not appear in the Constitution or in the Tenth Amendment. This omission demonstrated the intent of the framers to permit “implied powers” in addition to those expressly granted.
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Under this form of reasoning, the congressional decision not to prohibit slavery in the territories, like the decision not to limit Congress to expressed powers, was equivalent to a decision that slavery was permitted.
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At the root of these legal forms lay the concept that slaves were property, and that the owner of female slaves “owned” her children and prospective children. Slavery had been lawful in all states at the time they ceded their jurisdiction to the Congress. The cession agreements did not alter or abridge any existing rights to property. Thus slavery would remain lawful in the territory until the Congress acted to change its status. These principles were so elementary that they were imbedded in the actions of both pro-slavery and antislavery forces.
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In response to Pickering’s urgings in 1785, on March 16 King moved a resolution prohibiting territorial slavery, as an amendment to the land ordinance then under consideration.
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It would have had immediate effect. By a vote of eight states to four, the resolution was committed to a committee he chaired. The vote reflected a straight North-South split.
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The northern states were prepared to discuss the slavery issue—the southern states were not. Both sides assumed that such legislation was necessary if slavery was to be prohibited.

The committee reported a resolution that reinstated Jefferson’s prospective abolition principle of the previous year, and added a fugitive slave clause to sweeten the proposal for slave owners:
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That after the year 1800 of the Christian era that there shall be neither slavery nor involuntary servitude in any of the states, described in the resolve of Congress of the 23 April, 1784, [the 1784 land ordinance] otherwise than in punishment of crimes, whereof the party shall have been personally guilty: And that this regulation shall be an article of compact, and remain a fundamental principle of the constitutions between the thirteen original states, and each of the states described in the said resolve of the 23 April, 1784,
any implication or construction of the said resolve to the contrary notwithstanding
—provided always, that upon the escape of any person into any of the states described in the said resolve of Congress of the 23d day of April 1784, from whom labor or service is lawfully claimed in any one of the original states, such fugitive may be lawfully reclaimed, and carried back to the person claiming his labor or service as aforesaid.
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(emphasis added)

King’s motion, as amended by the committee, would have allowed slavery in all the territory for fifteen years, after which it would have been prohibited in all of the territory. It also provided for the return of fugitive slaves who had escaped from the original states. Thus the principle of containment of slavery to the original states was included in his resolution. This appears to follow Pickering’s suggestion to limit slavery to the states where it already existed, although the fifteen year permission for slavery to grow would not have pleased him.

These sweeteners were not enough to accommodate the South. The southern opposition to the freedom principle was as strong in 1785 as it had been in 1776. King did not submit this amended proposal to a vote. He must have concluded that he would suffer the same defeat as had Jefferson in 1784.
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King’s failure to press his motion to a vote strengthened the inference that slavery was permitted in all U.S. territory.

The boldface clause is evidence that the defeat of Jefferson’s 1784 antislavery proposal was viewed by lawyers as authorizing slavery in all the territories. The only purpose of the clause is to rebut that inference once the year 1800 arrived. This is strong evidence that the lawyers understood that language in the 1784 ordinance meant that slavery was permitted in the entire territory.
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In an era where there was no federal supremacy clause and no full federal court system, the lawyers’ understanding was law.

The next major step in developing a program to govern the territory was a report by James Monroe who had visited the northwest territory. He concluded that Jefferson’s proposed division of the area in the 1784 legislation would produce states that were so small that they would be unlikely to obtain a population entitled to statehood. Monroe had a low opinion of the area:

A great part of the territory is miserably poor, especially that near Lakes Michigan and Erie; and that upon the Mississippi and Illinois consists of extensive plains which have not had from appearances and will not have a single bush on them for ages.
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Monroe recommended asking the states which had ceded lands conditioned on the creation of nine to ten states provided in the 1784 ordinance to amend their cession agreements to permit fewer states north of the Ohio River.
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In July 1786, Congress asked Virginia to modify its act of cession to permit the establishment of three to five states in that area.
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The ten states that Jefferson had proposed—if settled by northerners—would have given the North a more decided advantage over the South in any future government which, it was thought, might give an equal votes to each state. On the other hand, an increase in four states to the north would be balanced by an equal number of slave states east of the Mississippi. Was Monroe not much of a farmer, or was he a far-sighted politician who did not want to give the North such a voting advantage?
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On September 19, 1786, another bill concerning the governance of the territories was proposed to Congress.
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It recommended a more formal governmental structure than had the 1784 ordinance and adopted most of the proposals in the report Congress had considered.
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This bill reflected both a distrust of what the settlers might do if left to themselves and a desire for greater congressional supervision of the territorial government than Jefferson had planned. The bill passed its second reading on May 9, 1787.
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The same day, Congress received a petition from the Ohio Company seeking land at a convenient place for officers and soldiers. This was the same group of veterans that Timothy Pickering had been working with since 1783, seeking a slave-free area.

Congress then lost its quorum and was unable to do business, because fifteen of its members were also delegates to the Constitutional Convention that convened in late May in Philadelphia. The Congress could not reconvene until enough delegates returned to create a quorum. Around July 6, five delegates from Virginia, North Carolina, and Georgia reached New York. To understand the extraordinary events that occurred after their arrival in New York, we must examine what happened at the Constitutional Convention in Philadelphia during the last week in June and the first two weeks in July. As Historian H. J. Henderson wrote:

Only by perceiving the Northwest Ordinance in the context of the proceedings of the Constitutional Convention can one properly understand its passage, and only by viewing the debates of the Convention as an extension of Congressional factionalism can we understand why the Convention had such a vital influence on the ordinance.
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The alliance of states that had fought the Revolution was weakened once the war ended. The Continental Congress had deliberately created a frail central government in the Articles of Confederation.
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There was no executive branch. Each state had one vote, and could veto any changes to the Articles. The Congress had no taxing power, and could raise money only by begging the states for it. It had no power to prevent the states from taxing goods exported to other states. Thus New Jersey, whose goods were taxed at port cities of both New York and Philadelphia, was “like a cask tapped at both ends; and North Carolina, between Virginia and South Carolina...a patient bleeding at both arms.”
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After disbanding the army, the Congress had no federal military force. In Massachusetts during the recession of 1786, war veteran Daniel Shays led a crowd of disgruntled former soldiers in a “rebellion.” They had been paid with paper that was growing worthless, causing the loss of their farms to foreclosures and leaving them facing imprisonment for debt. They closed the courts in several towns and headed toward the arsenal in Springfield. Local militia dispersed them. The discontent was not limited to Massachusetts, however. Up and down the eastern seaboard, courts with the power to imprison debtors were closed by mob violence.
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To the political and economic leadership, the impotence of the federal government was proving a disaster. The state governments looked no better, printing paper money that rapidly became worthless, thus contributing to the general collapse of the economy. Finally, twelve states agreed to a call by Virginia for a convention in Philadelphia in May 1787, to consider amending the Articles of Confederation to strengthen the powers of the federal government.

The Virginia delegation came to Philadelphia prepared to dominate the convention. The distinguished group was headed by George Washington, and included Governor Edmund Randolph, James Madison, George Mason (who had drafted the Virginia Constitution of 1776), and George Wythe (a judge, a mentor of Jefferson’s, and the first law professor in an American college).
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They planned to create a strong national government that would be controlled by the larger states, based on population—Virginia, Massachusetts, and Pennsylvania were the most populous at the time. They spent nearly two weeks preparing their proposal—known as the Virginia or Randolph plan. It was designed to create a strong federal government by giving the central government the power to tax, and weakening the states’ ability to prevent, delay, or interfere with federal government programs.

Virginia’s governor, Edmund Randolph, presented the plan on May 29.
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It featured a two-part national legislature that was based on the single principle of representation. The number of representatives that each state would have in Congress was to be based on “the quotas of contribution,” meaning each state’s share of contributions to the federal budget. This proportion had been set in a political compromise by Congress in 1783 as counting each slave as three-fifths of a person for purposes of setting each state’s contribution to the federal government.
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An alternative proposal was to measure representation by the “number of free inhabitants” but Madison quickly moved to strike this alternative because he said, “it might occasion debates which would divert the Committee from the general question whether the principle of representation should be changed.”
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